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

v

MATHEW CHARLES JOHNSON

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN JASON SONNET

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BRIAN PAISLEY

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN WENITONG

---

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

---

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

---

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:

1. 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.

1. 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 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 QB 114 at 127, per Davies LJ). Considerations of this kind, no doubt, influenced Young CJ in Hinch v A-G 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.  His Honour’s orders have taken no account of that provision."[2]

[2]p.281

1. In my opinion like reasoning applies to the provisions of s.16 of the Sentencing Act which govern the question of whether offences are to be served concurrently or cumulatively.  For obvious administrative purposes it is necessary that there be a clear scheme as to whether sentences are to be served concurrently or cumulatively. 

1. The question of the applicability of ss.11 and 14 of the Sentencing Act raises more difficult considerations.  Hinch v Attorney-General (Vic.)[3] is clear authority that general provisions relating to sentencing should not be held to fetter or inhibit the powers of the Court at common law with respect to contempt, unless the legislation demonstrates an express intention to do so.[4] This is so despite the general intention to codify the law with respect to sentencing which may be discerned in s.1 of the Act.  In this regard I note that the purposes of the Penalties and Sentences Act 1985 which were considered by the Full Court in Hinch included purposes:

"(a)     to have within the one Act all general provisions dealing with the powers of courts to pass sentences;  and

…

(d)      generally to reform the sentencing laws of the State."

[3](1987) VR 721 per Young CJ at 731 and per Kaye J at 749

[4]per Young CJ at 731 and per Kaye J at 749

1. It follows that s.11 should not be construed as removing or materially fettering the common law power to summarily impose terms of imprisonment. In my opinion, however, this is not the effect of s.11. Section 11 requires a court, inter alia, to fix a non-parole period where an offender is sentenced to be imprisoned for a term of two years or more, but such obligation arises only "unless it considers the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate." In those relatively rare cases of contempt of court where a term of two years or more imprisonment is imposed, it is clearly open to the Court to take the view that a contempt is an offence having a special character and to exercise its powers in accordance with s.11 without fixing a non-parole period. On the other hand the effect of the section is to amplify the powers of the Court with respect to sentencing by enabling it to fix a sentence which contemplates the possibility of parole if it is appropriate to do so having regard to "the nature of the offence (and) the past history of the offender." The provisions of s.74 of the Corrections Act 1986 would then take effect.

1. There are strong policy considerations supporting such a conclusion which were summarised by the New South Wales Court of Appeal in Attorney-General (New South Wales) v Whiley[5] although in that case they were put forward in support of the view that equivalent legislation in that State amounted to a complete codification:

"First, it would provide consistency in sentencing, especially where the contempt could also amount to an offence under the Crimes Act;  secondly, it is to the benefit of the opponent that, if (sic) the Sentencing Act provides for a more flexible sentencing approach so that the sentence can be structured to take into account more readily the interests of both the community and the offender and to provide for supervision upon release from custody."

[5](1993) 31 NSWLR 314 at 320

1. The critical consideration, however, is as I have stated one of statutory construction namely whether the provisions of ss.11 to 14 relating to non-parole periods unacceptably fetter the common law power to imprison for contempt.  In my opinion these provisions are not "inconsistent with the exercise of the power" (to use the words of Winneke P in Rich) because s.11 necessarily contemplates that the Court may regard a contempt as falling within a special class of offence requiring a contemnor to be dealt with in accordance with the practice of the common law. I am therefore of the view that in the event of imposing a term of imprisonment of 2 years or more I should fix a non-parole period pursuant to s.11 of the Sentencing Act unless I consider that the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate.

1. The approach I have adopted does not of course imply that all the provisions of the Sentencing Act necessarily apply to sentencing for contempt.  In this regard I note that Gillard J held in National Australia Bank Limited v Juric (No. 3)[6] that the provisions of the Sentencing Act relating to suspended sentences apply to contempt proceedings and observed:

"This would not mean that all the provisions of the Sentencing Act would apply because many of them are clearly only concerned with offenders under the criminal law.  But nevertheless, there are sections within the Act which, in my view, could apply to the sentencing for a contempt.  In support of that observation, I refer to the purposes of the Sentencing Act which are set out in s.1 and in particular, paragraphs (a), (b), (c), (d) (in relation to promoting respect for the law) and (l).  The Sentencing Act provides for a range of different types of punishment, types which were not applied by the common law in respect to contempt findings and which reflect a modern approach to sentencing.  I see no reason why the provisions of the Act concerning suspended sentences should not apply.  In my view, they do."[7]

[6](2002) VSC 86

[7]at para.69

1. Counsel have already addressed me as to the circumstances of the contempts and other matters relevant to sentence. Nevertheless because I had not ruled on the applicability of the Sentencing Act at the time of such submissions I propose as a matter of procedural fairness to give the parties the opportunity to raise with me prior to sentence any additional matters which they regard as relevant in the light of this ruling. I propose to take this course because the submissions of counsel were directed primarily to the threshold question of whether the provisions of the Sentencing Act apply.  For the reasons I have stated I am of the view the critical question is whether I should consider "that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate", in the event that I impose a term of imprisonment of 2 years or more with respect to any of the contempts before me.

---