R (on the application of the Chief Examiner) v DF (No 2)

[2014] VSC 213

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 02572 of 2013

THE QUEEN (On the application of the Chief Examiner pursuant to s 49 of the Major Crime (Investigative Powers) Act2004, a certificate of Charge dated 21 May 2013 and the order of the Honourable Justice Curtain made on 21 May 2013 in this proceeding)	Applicant
v
DF	Respondent

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 APRIL 2014
DATE OF SENTENCE:	8 MAY 2014
CASE MAY BE CITED AS:	R (on the application of the Chief Examiner) v DF (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 213

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CRIMINAL LAW – Sentence – Contempt of Chief Examiner – Refusal to answer questions after taking oath – Contempt in respect of examination into serious alleged offences – Subject to a legal challenge, contempt admitted – Assistance offered outside of examination process - Sentence of 20 weeks imprisonment – s 49 Major Crime (Investigative Powers) Act 2004.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Young SC with Mr A Imrie of counsel	Office of the Chief Examiner
For the Respondent	Mr S Holt SC with Mr M Stanton of counsel	Victoria Legal Aid

HIS HONOUR:

1. On 3 April 2014, I rejected your contention that a contempt could not be proved beyond reasonable doubt by the Chief Examiner pursuant to section 49 of the Major Crime (Investigative Powers) Act2004 (‘the Act’) because you were not brought before the Chief Examiner by a valid custody order. My reasons[1] for this conclusion set out the history of and background to your appearance before the Chief Examiner. Those reasons also set out the circumstances that constitute the contempt. I will not repeat what I then said. I regard those reasons as incorporated with these reasons and taken as having been read by, or explained to you.

   [1]R (on the application of the Chief Examiner) v DF, [2014] VSC 119.

1. Section 49 of the Act states that a person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person on being called or examined as a witness at an examination, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination. When you took the oath and then refused to answer any and all questions put to you, you committed a contempt of the Chief Examiner.

1. I did not consider it appropriate to accept the suggestion of counsel for the Chief Examiner that I arraign you and take your plea. I have no doubt that had I done so you would have pleaded guilty. Although superficially there is an attractive argument for a process of arraignment, this proceeding is not a trial on indictment in the court’s criminal jurisdiction.[2] It is a civil proceeding in the Common Law Division of the court initiated by an originating motion. In such a proceeding, an arraignment process has no utility.

   [2]See R v Talia [1996] 1 VR 462, at 471-473.

1. I am satisfied that when the originating motion came on for hearing, you admitted that there was no dispute that the charge of contempt was made out against you if I ruled against your contention that the custody order was invalid. Your legal defence has failed and I find you guilty of a contempt of the Chief Examiner.

1. There is no particular penalty or maximum penalty for this offence. Section 49(10) requires a contempt of the Chief Examiner to be dealt with by the Supreme Court as if the contempt were a contempt of an inferior court, and as if the certificate of charge were an application to the Court for punishment for the contempt. The penalty for the offence is at large.[3] I have the power to imprison, to fine, to order payment of costs, and to order imprisonment in default of payment of either a fine or costs.[4] In your case the only proper sentence is an immediate term of imprisonment.

   [3]Allen v The Queen[2013] VSCA 44 at [54] per Priest JA, ( Maxwell P and Weinberg JA agreeing).

   [4]Pattison v Bell[2007] FCA 137 at [45], and Pico Holdings Inc v Voss[2002] VSC 319 at [93]- [95], R v Slaveski [2012] VSC 7.

1. In other cases, the parties have drawn the sentencing judge’s attention to the five-year maximum penalty provided by s 36 of the Act for the specific offence of refusing or failing to take an oath or make an affirmation, when required to do so by the Chief Examiner and that maximum penalty has been thought to be helpful in determining a proper penalty.[5] The offence that you have committed is a serious offence. The key purpose of the Act is to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences by the Chief Examiner. Information obtained at such an examination may assist in the investigation of organised crime offences and the successful prosecution of those who commit them. The extensive confidentiality provisions in the Act are intended to minimise interference with the civil liberties of witnesses and protect the confidentiality of participants in compulsory processes thereby ensuring the safety of those who must submit to examination.[6]

   [5]E.g. R v QF[2014] VSC 81.

   [6]R v Debono [2013] VSC 413, at [4].

1. I was referred to the decision of Dunford J in Wood v Staunton(No 5)[7] where the relevant factors that may warrant consideration in assessing the proper punishment for contempt were assayed. I will take into account a number of matters that were put to me during the plea hearing in fixing the proper sentence.

   [7](1996) 86 A Crim R 183 at 185

1. Initially I will explain the view I take of the gravity of your offending. The Chief Examiner contended that the contempt was a very serious contempt because of its strategic impact on investigation of very serious offences and because the role of the Chief Examiner is central to achieving the objects of the Act. Your counsel submitted that, despite your deliberate refusal to co-operate with the Chief Examiner you were polite and respectful, particularly in the context of your personal background and the extent of your institutionalisation.

1. What is significant is that your contempt was a measure of your intentional disrespect for the office of Chief Examiner and for the statutory functions that were being performed.[8] You were aware of the consequences of your conduct and acted deliberately, using militaristic and ideological language to explain your resolve to commit the contempt. I accept that your contempt was not aggravated by interpersonal aggression or other displays of emotion, which are a common feature of contempt in the face of a court or tribunal, but while you may have shown respect for the Chief Examiner and police officers as persons doing their job, that is not the point in your case. I consider your offending was a very serious contempt. There is another matter relevant to assessing the gravity of your offending, which is the actual consequences of your conduct.

   [8]I am not assisted by the significantly different circumstances of the contempt considered by Martin CJ in Corruption and Crime Commission v Allbeury, Silvestro, Chikonga and Smith [2011] WASC 26 to which the Chief Examiner referred.

1. This is not a case where you have provided no information to police. The summons to be examined follows on a prior interview and it is clear that the Chief Examiner was not seeking information where none had been forthcoming to the investigation. Rather, further and better particulars of certain facts that had been revealed were being sought in the examination. No doubt, the Chief Examiner also had in mind using the examination process to carefully evaluate the information that you had provided. It would have been plain to all concerned in the investigation that your assistance might never amount to any more than a visit from the tooth fairy.

1. Then, following submissions to me on the validity of the custody order but before my decision was known, you offered to do, and did, the things that are set out in the affidavit of Sarah Isobel Westwood sworn 14 April 2014. The Chief Examiner submits  that this subsequent offer and associated activity was of no utility to the investigation and it was not taken further. Your counsel contended that the sequence of events described by Ms Westwood is relevant for two reasons.

1. First, it demonstrated your ongoing willingness, despite significant personal risk, to provide information. I am not persuaded that this is a consideration deserving of any significant weight in your favour on sentence. I accept that a timely offer to purge your contempt by submitting to questioning by the Chief Examiner would be a significant mitigating factor, but I cannot characterise the subsequent events in this way. The offer was not made to the Chief Examiner, nor was it timely, occurring approximately 9 months after your contempt. Whatever ongoing willingness on your part may be inferred from subsequent events appears limited to some other process of questioning and the utility of that process to the investigation is not shown. I note that your counsel eschewed any mitigating effect in respect of this offending that might arguably arise from your offer to assist or provide information. The more recent events that were the subject of submissions this morning confirm that this concession was appropriate. That bring me to the second reason.

1. The failure of investigators to take up your offer is said to demonstrate the marginal value to the investigation of the relevant organised crime offences of further questioning of you either at the time of the offer or at the time of the examination. It is convenient to note a separate submission put on your behalf before expressing my view in this issue.

1. Recently, in R v QF,[9] Croucher J imposed a sentence of ten weeks imprisonment on QF for the same offence. Moreover, QF was to be questioned in respect of the same organised crime offences, under the same coercive powers order.[10] Your counsel contended that the parity principle was arguably engaged, with the decision in QF being of particular importance when considering current sentencing practices. I will return to the issue of parity. Counsel drew attention to statements at appellate court level of the importance of avoiding unjustified inconsistency of sentencing of offenders in comparable circumstances, because such inconsistency is regarded as a badge of unfairness and unequal treatment under the law.[11]

   [9][2014] VSC 81.

   [10]Made by King J on 15 April 2013.

   [11]Hasan v The Queen (2010) 31 VR 28, 39[48], Lowe v R (1984) 154 CLR 606, 611.

1. In QF, Croucher J rejected a submission put for the Chief Examiner that had QF been sworn or affirmed, he would have been able to significantly assist in the investigation of the organised crime offences. I accept that the path by which Croucher J reasoned to that conclusion is not available to me. What is said here is that there was an opportunity that was lost to seek information on matters that were considered relevant to the investigation, because the information already provided raised further questions that might have been answered. I accept that there was a legitimate basis for further inquiry as the submissions of counsel for the Chief Examiner made clear. I also accept that the Chief Examiner enjoys the statutory right to examine you under oath at the time and place and by the interrogator of his choosing to test carefully the value of the information that you provide.

1. However, I do not know the detail of the proposed questioning or whether you were capable of usefully providing further information in response. I was invited, in effect, to assume that the information that you had provided was fertile ground from which a healthy crop could have been harvested by further questioning. I see no reason why a proper evidentiary basis was not put before me for the inference sought by the Chief Examiner that you could have provided significantly more information than you have done to date. On the evidence, drawing that inference is a matter of speculation. I remain unpersuaded by the Chief Examiner on the material that is before me that you would have been, or were thought to be, able to further assist in the investigation of the organised crime offences to a greater extent than had actually occurred. If you were thought capable of in some sense purging your contempt and providing useful information, the police would not have responded to Ms Westwood in the terms that they did.

1. I am unpersuaded that your contempt should be regarded as ‘strategic’, but I remain persuaded that the actual consequences of the contempt have preserved a code of silence, or otherwise thwarted the application of the rule of law. It would be erroneous to regard the consequences as aggravating a deliberate knowing contempt.

1. The Chief Examiner has, in a supplementary submission this morning, urged on me the proposition that the supplementary affidavit of Fleur Taylor sworn 1 May 2014, which refers to the last page of a statement tendered on the plea before a sentencing judge in another matter, clearly shows that you regard the conviction of contempt as a badge of honour and that it is both a serious and premeditated contempt. I do not find your comments unpredictable and I was persuaded of the quality of your contempt before I learned of the that material.

1. I also remain unpersuaded that investigators entertained any reasonably based notion of securing genuine co-operation from you. I infer from the language you used at the examination to express at length your claim to some form of conscientious objection to the process of coercive questioning that you operate by a peculiar set of rules. This is the predominant reason for your contempt. No doubt, your attitudes are well known to police. There is nothing to suggest that investigators would be surprised to hear you say that you offered a ‘loaded lure bait’ to sabotage the police investigation and that you will take a true account of events to the grave. Those remarks are unsurprising, consistent with the manner of expression of your ideological objection to coercive questioning.

1. I accept there is a concurrent reason operating, which is a fear for the safety of your family. Neither reason attracts any mitigating weight in fixing a proper sentence, but that is not to say that I am not satisfied that you reasonably entertained a genuine fear of violence towards yourself and your family by a person of interest to the police in respect of the serious major crime offences being investigated.

1. Although your counsel had, at a directions hearing, informed the court that time was needed to investigate a possible Constitutional defence, or a defence of reasonable excuse based on medical evidence, I am satisfied that you have not disputed the conduct that forms the basis of the contempt. This is a matter that I take into account in your favour. I will discount the sentence that I otherwise would have imposed on two bases. First, to allow for the utilitarian benefit arising from the fact that you have not disputed your conduct and, second, because you knew your conduct was in contempt and you accept responsibility for your contempt. However, you are not remorseful, far from it, and the extent to which you have or would assist the investigation is a matter I have already discussed.

1. You are a person who has now become institutionalised within the prison system, having an extensive criminal record. I accept that you came from profoundly difficult family circumstances and that for protective reasons you were placed in a boys’ home at age 13. I note a prior conviction for contempt of a magistrate in 1987 that resulted in a sentence of 14 days’ imprisonment. I do not consider that you have any present prospects of rehabilitation. In recent times you have not been afforded any assisted opportunity for rehabilitation. Perhaps more significantly you will be sentenced on other matters and I have in mind that the sentencing judge on those matters will have regard to the principle of totality and its application in your case. These are matters of significant distinction between your circumstances and those of QF.

1. I have read the report of Pamela Matthews and accept her opinion that your current de-compensated mental state is not consistent with a formal diagnosis of psychosis or major mood disorder but likely to be the result of being in restrictive custody settings and associated stress. Dr Matthews concludes that your personality, coping skills, mental state fluctuations, chronic post trauma symptomatology and aberrant behaviours are all a product of long periods in restrictive custody.  This is a matter that I also take into account when evaluating your most recent statement about your disclosures to the police in the investigation.

1. In fixing a proper sentence, I take into account that because of your particular circumstances, the detail of which I need not publish, incarceration results in a harsher sentence for you than that served by the average prisoner.

1. Returning to the issue of parity, it is important to observe that you and QF are not co-offenders. That said, there is no reason not to apply the fundamental principle of consistency in approach in the sentencing of offenders that underpins the parity principle at common law and is recognised by the legislature as a purpose of the Sentencing Act 1991[12] to the extent that it has application. As I have noted already, there are significant differences between you and QF in respect of your age, antecedents and prospects for rehabilitation that suggest that a greater sentence than that imposed on QF is warranted. It was submitted that the circumstances in which you each committed contempt reflect more favourably on you because what was being sought from you, unlike QF, was further information building on what investigators had already learned from a record of interview and by your subsequent conduct further information was offered. The Chief Examiner submitted that the material justifies a conclusion that you may be able to provide more useful information to the investigation than QF could have done, but I am not drawn to that conclusion.

   [12]See s 1(a).

1. I am not persuaded that the circumstances in which you each committed contempt are materially different. In each case, as would be expected, the background circumstances of your knowledge and interaction with investigators was different even though the investigation concerns the same organised crime offences. However, QF’s conduct in the examination was not markedly different to your conduct. Reflecting on these various considerations, I am satisfied that, consistent with the principles of parity, a significantly longer sentence of imprisonment than that imposed on QF could not give rise to a justifiable sense of grievance on your part.

1. The only purposes for which a sentence may be imposed are, in short, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.[13] General deterrence is a paramount sentencing consideration in offences of this nature. As another judge of this court stated when sentencing for an offence of this nature in 2011, the Act can only remain as a powerful weapon in the community’s armoury against serious crime if those refusing or failing to comply with its provisions understand that stern punishment awaits them. Specific deterrence must also be given weight.

   [13]Section 5(1), Sentencing Act 1991 (Vic)

1. Denunciation is also a relevant purpose in sentencing for this offence. The community expects that courts denounce deliberate contempt of the Chief Examiner. The conduct that is revealed by the Westwood affidavit, and your attitudes as disclosed by the Taylor affidavit, suggest that it is unlikely that the Chief Examiner will seek to further examine you about these organised crime offences. I see no need for any weight to be given to protection of the community as a sentencing purpose. I also take account of the substantial sentence that you face on other matters and my assessment of your prospects of rehabilitation when concluding that rehabilitation is not presently a relevant sentencing purpose.

1. When fixing your sentence, I have applied the common law principle of parsimony, which is now stated in the Sentencing Act. Section 5(3) of the Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

1. I have paid regard to current sentencing practices in so far as a practice can be discerned in relation to this offence, while bearing in mind that it is difficult to usefully compare other cases. That said I have been assisted by a survey of the various authorities and reasons for sentence provided to me. I have drawn assistance from  those cases dealing with the particular offence under consideration,[14] rather than from cases in respect of like offences, which are mostly drawn from other jurisdictions.[15] Those cases in respect of like offences in other jurisdictions do not shed any light on current Victorian sentencing practices.

   [14]R v Debono [2013] VSC 413, In the matter of a contempt arising under MC(IP) of 2011 No 25 and MC(IP) of 2011 No 27 [2013] VSC 611R, Application pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004,re a charge of contempt of the Chief Examiner (27 April 2011, restricted), Chief Examiner v Camilleri [2006] VSC 442.

   [15]Allen v The Queen [2013] VSCA 44, Hannaford v HH (No 2) [2012] FCA 560, DPP v Dickson [2011] VSC 9, Corruption and Crime Commission v Wallace (No 2) [2011] WASC 73, Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith (No 2) (2011) 205 A Crim R 386, R v Drever [2010] SASCFC 27, Field v NSW Crime Commission [2009] NSWCA 144, R v El Kholed [2009] QSC 335, R v Abell [2007] QCA 448, Principal Registrar of the Supreme Court of NSW v Tran [2006] NSWSC 1183, R v Razzak (2006) 166 A Crim R 132, Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964, R v Taber; R v Styman [2005] NSWSC 1329, R v Garde-Wilson [2005] VSC 452, NSW Crime Commission v Field [2003] NSWSC 5, Registrar, Supreme Court of South Australiav Zappia (No 2) (2003) 86 SASR 410, Kennedy v Lovell [2002] WASCA 226, Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527, Wood v Staunton (No 5) (1996) 86 A Crim R 183, Wood v Galea (1996) 84 A Crim R 274.

1. My task is to impose a punishment that is limited to what is just in all of the circumstances and of a severity commensurate with the seriousness of your criminal conduct. Balancing all factors as best I can, I am of the view that you must be convicted of contempt of the Chief Examiner and sentenced to be immediately imprisoned for 5 months. Unless otherwise advised, and to avoid any doubt about the matter, I regard the entire period of your detention in custody prior to today as referable to other offences because it was while you were in custody on remand for that offending that the custody order was issued and the examination before the Chief Examiner was conducted.

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