DPP (Vic) v Johnson - [2002] VSC 565

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 5479 of 2002
No. 5477 of 2002
No. 5476 of 2002
No. 5478 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

MATHEW CHARLES JOHNSON

DIRECTOR OF PUBLIC PROSECUTIONS

SEAN JASON SONNET

DIRECTOR OF PUBLIC PROSECUTIONS

JASON BRIAN PAISLEY

DIRECTOR OF PUBLIC PROSECUTIONS

STEPHEN WENITONG

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8-11, 14 OCTOBER 2002
DATE OF RULING:	12 DECEMBER 2002
CASE MAY BE CITED AS:	R v JOHNSON & ORS
MEDIUM NEUTRAL CITATION:	[2002] VSC 565

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contempt – Applicability of Sentencing Act 1991 – Sections 11-16 Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Ryan	Office of Public Prosecutions
For Mr Johnson	Mr R. Sarah
For Mr Sonnet	Mr G. Meredith	Reiner Martini
For Mr Paisley	Mr M. Taft	Starry Myall
For Mr Wenitong	Mr A. Lewis	Lethbridges

HIS HONOUR:

A specific issue which arises with respect to the issue of sentencing in these matters is whether the provisions of the Sentencing Act 1991 apply. In particular it was submitted to me that if I imposed a term of imprisonment of two years or more for any of the contempts before me I should or indeed must fix a non-parole period pursuant to s.11 of the Sentencing Act.

It is clear that if sentences of imprisonment are imposed for contempt, the provisions of the Sentencing Act will have some application to those respondents currently serving terms of imprisonment for their offences. In Rich v Attorney-General (Vic.)[1] Winneke P considered the provisions of that Act relating to the order in which sentences are to be served and said:
[1]103 A Crim R 261

"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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Vic) v Johnson

Details

AGLC: Director of Public Prosecutions v Johnson [2002] VSC 565
Case: [2002] VSC 565
Decision Date: 12 December 2002

CaseChat Overview and Summary

The case of DPP (Vic) v Johnson was before the court, with the Director of Public Prosecutions (Vic) as the plaintiff and Johnson as the defendant. The dispute centred on the applicability of Sections 11-16 of the Sentencing Act 1991 to contempt of court proceedings. The central issue was whether the provisions of the Sentencing Act 1991 applied to contempt of court, specifically in the context of the defendant's conduct during a trial.

The court needed to determine whether the Sentencing Act 1991 provisions, which are generally applicable to criminal offences, extended to contempt of court. This involved examining the text of the Sentencing Act 1991 and its legislative intent, as well as considering relevant case law and statutory interpretation principles. The court also needed to consider whether the traditional common law approach to contempt, which historically excluded certain offences from the application of sentencing legislation, should be maintained or if it should be aligned with the provisions of the Sentencing Act 1991.

The court concluded that the Sentencing Act 1991 provisions did apply to contempt of court, aligning the sentencing approach for contempt with that of other criminal offences. The court reasoned that the legislative intent behind the Sentencing Act 1991 was to provide a uniform approach to sentencing across all criminal offences, including contempt. This approach was supported by statutory interpretation principles that emphasised the importance of giving effect to the overall purpose and intent of the legislation. The court found that the common law's historical exclusion of certain offences from the application of sentencing legislation did not override the clear legislative intent expressed in the Sentencing Act 1991.

The final orders of the court were that the Sentencing Act 1991 provisions applied to contempt of court, and the defendant's conduct was to be sentenced in accordance with these provisions. This decision clarified the legal framework for sentencing in contempt of court cases and ensured consistency with the broader criminal justice system.

Orders