R v Brigham
[2018] VSC 284
•27 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0006
| THE QUEEN (on the application of the Chief Examiner) | Applicant |
| v | |
| ALEX BRIGHAM (a pseudonym) | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 19, 26 March 2018 |
DATE OF JUDGMENT: | 27 April 2018 |
CASE MAY BE CITED AS: | R v Brigham |
MEDIUM NEUTRAL CITATION: | [2018] VSC 284 |
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CONTEMPT – Examination under Major Crime (Investigative Powers) Act 2004 – Contempt – Refusal to be sworn or to make an affirmation – No explanation for contempt – Totality – Major Crime (Investigative Powers) Act 2004 ss 36(2) and 49(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Sharp | Office of the Chief Examiner |
| For the Respondent | Mr C Farrington | Stephen Andrianakis & Associates |
HIS HONOUR:
Introduction
On 26 March 2018, Alex Brigham (the respondent) admitted a charge of contempt brought by a written Certificate of Charge issued in the name of the Chief Examiner pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). On [redacted], the respondent refused to take an oath or make an affirmation, as required by s 36(2)–(3) of the Act, when appearing before the Chief Examiner’s delegate in answer to a witness summons. This conduct constitutes contempt of the Chief Examiner pursuant to s 49(1)(b) of the Act.
Maximum penalty
Section 49(1) of the Act creates the offence of contempt of the Chief Examiner. However, the Act does not specify any particular penalty or maximum penalty for such offending.
Before me, the parties correctly proceeded on the basis that the penalty for the respondent’s offending is at large. However, it was argued the five year maximum penalty set out in s 36(4) of the Act, which relates to the specific offence of refusing or failing to take an oath, provides a useful comparator for sentencing purposes in the present circumstances. In R v QF,[1] Croucher J took this approach, and it has been similarly taken in other cases. I agree that this is the approach to be taken in the matter before me.
[1][2014] VSC 81.
Both parties accept that the offending admitted by the respondent warranted a sentence of imprisonment being imposed.
Background to the offending
On 4 August 2016, Coghlan J made a coercive powers order in respect of an alleged organised crime offence. The order was further extended and varied on 3 August 2017, to include a further organised crime offence. Ultimately, the relevant coercive powers order included the following two alleged organised crime offences:
(a) Arson [redacted]; and
(b) Attempted murder [redacted].
On 21 December 2017, the Chief Examiner issued a custody order pursuant to s 18 of the Act requiring the respondent to be brought before the Chief Examiner at 9.30am on [redacted]. Notice of the proposed examination was brought to the attention of the respondent on [redacted] when the summons to attend was served on him.
The custody order stated the general nature of the matters about which the respondent was to be questioned as required by s 15(10) of the Act. [Redacted]
On 22 December 2017, the Chief Examiner signed an Instrument of Delegation, thereby delegating Joanne L. Smith (‘the Acting Chief Examiner’) her functions, duties and powers under the Act in respect of the examination of the respondent.
Circumstances of the offending
The respondent attended before the Acting Chief Examiner [redacted].
Prior to the commencement of the questioning, the Acting Chief Examiner addressed the preliminary requirements of s 31 of the Act, which included a direction that the respondent take an oath or make an affirmation in the form prescribed by the Major Crime (Investigative Powers) Regulations 2015.
[Redacted], the following exchanges took place between the Acting Chief Examiner and the respondent:
ACTING CHIEF EXAMINER: Very well. I’m now going to direct that you take an oath or an affirmation and it will be in the form prescribed by the Regulations. Would you prefer to swear an oath on the Bible or make an affirmation?
MR [BRIGHAM]: I’m not taking an oath.
ACTING CHIEF EXAMINER: You have the opportunity to either swear an oath on the Bible or to make an affirmation. It is prescribed in the Regulations. Can I have the Bible provided to Mr [Brigham], please? Now, Mr [Brigham], the form of the oath that is prescribed by the Regulations states, ‘I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth’. Mr [Brigham], I direct that you take that oath.
MR [BRIGHAM]: No.
ACTING CHIEF EXAMINER: Mr [Brigham], the form of the affirmation that is prescribed by the Regulations is, ‘I do solemnly, sincerely and truly declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth’. Mr [Brigham] are you – will you be willing to take an affirmation?
MR [BRIGHAM]: No.
ACTING CHIEF EXAMINER: Mr [Brigham], I direct that you take the affirmation.
MR [BRIGHAM]: No.
ACTING CHIEF EXAMINER: So you’ve indicated that you are refusing to either swear an oath or to take an affirmation, is that correct - - -
MR [BRIGHAM]: That’s correct.
ACTING CHIEF EXAMINER: - - - as directed to: as I’ve directed you under the legislation?
MR [BRIGHAM]: Yep.
ACTING CHIEF EXAMINER: Now, Mr [Brigham], are you aware that your refusal to do so constitutes a contempt of the Chief Examiner?
MR [BRIGHAM]: Yep.
The Acting Chief Examiner then read extracts of s 49 of the Act to the respondent, in effect outlining the relevant legislation to his refusal to take the oath. The following exchange then occurred:
ACTING CHIEF EXAMINER: So do you understand that it’s – that you are committing a contempt if you refuse to take an oath?
MR [BRIGHAM]: Yep, I understand that.
ACTING CHIEF EXAMINER: And you understanding you’re committing a contempt if you refuse to make an affirmation?
MR [BRIGHAM]: Yep, I understand.
ACTING CHIEF EXAMINER: Do you have any reason for refusing to do so today?
MR [BRIGHAM]: Don’t want to.
As the respondent was legally represented by counsel at the examination, the Acting Chief Examiner then gave the respondent the opportunity to consult with his legal practitioner. On resumption of the examination, the following exchanges occurred:
ACTING CHIEF EXAMINER: Thank you. [Redacted], was there anything that you wished to put to me?
[Redacted]:No.
ACTING CHIEF EXAMINER: No?
[Redacted]: No, Your Honour.
ACTING CHIEF EXAMINER: Thank you. Mr [Brigham], is it still your position that you are refusing to swear an oath in the form prescribed by the Regulations?
MR [BRIGHAM]: Yep.
ACTING CHIEF EXAMINER: And, Mr [Brigham], is it still your position that you are refusing to make an affirmation in the form prescribed by the Regulations?
MR [BRIGHAM]: Yes.
The refusal to be sworn or take an affirmation in these circumstances was a very serious matter. Refusals of this kind undermine one of the principle purposes of the Act, which is directed towards investigating organised crime offences. In R v Debono,[2] Kyrou J emphasised the importance of the legislative scheme as, ‘an important mechanism to uphold the rule of law and to keep the community safe’.
[2][2013] VSC 413.
Further, the above circumstances reveal that the Acting Chief Examiner was enquiring about two distinct offences. It is clear that both areas of examination related to very serious areas of investigation. In my opinion, the refusal in the context of two areas of discrete examination elevates the gravity of the respondent’s conduct. As a result of the respondent’s offending two investigations were thwarted, and the Examiner not able to continue relevant enquiries.
Procedural history of the matter
After the offending occurred in the way described above, the Acting Chief Examiner stood the matter down for a Certificate of Charge to be prepared in relation to the alleged contempt and for the preparation of a warrant authorising the arrest of the respondent.
The examination was then resumed and the respondent was informed that the necessary documentation had been prepared in the face of the respondent’s refusal to swear an oath on the Bible or make an affirmation in the prescribed form, thereby constituting the alleged contempt.
Relevant parts of the Certificate of Charge were then read to the respondent, and the Acting Chief Examiner signed the Certificate. The arrest warrant was also signed, at which point the respondent was asked if he had any questions, to which he responded in the negative.
Having been told that he would be charged with contempt and taken directly to the Supreme Court, the respondent was arrested by a police officer and brought before the Court on the same day, to be dealt with according to law as required by s 49(4) of the Act.
The respondent appeared before Coghlan J pursuant to the Certificate of Charge, which alleged that he had committed a contempt of the Chief Examiner [redacted]. Amongst other things, his Honour ordered that the application before him be heard in a closed court, and that a publication of a report of the proceeding was prohibited until further order. Further, his Honour ordered that the respondent would be described as Alex Brigham in the proceeding and in all documents filed in the proceeding.
Personal circumstances of the respondent
The respondent is 26 years of age. He had a challenging upbringing, characterised by constant conflict between his parents, the demise of a successful family business with the eventual separation of his parents, and a subsequent change in lifestyle from that of a degree of privilege to one that was fractured and strained. The respondent’s later childhood appears to have been unhappy, and an attempt to gain a tertiary education failed. The period that followed was characterised by the use of drugs, leading to his later offending, ultimate arrest, and remand into custody in [redacted] 2016.
The respondent is currently serving a sentence of imprisonment imposed upon him [redacted] in relation to trafficking a large commercial quantity of cocaine, and trafficking in a commercial quantity of MDMA. For his offending, the respondent received a total effective sentence of eight years and three months’ imprisonment, with a non-parole period of five years and nine months’ imprisonment. It was submitted on the respondent’s behalf that, at the age of 26, a significant term of imprisonment now lies ahead of him.
Apart from the offending for which he received the above sentence, the respondent has no other prior criminal history. No material was put before me to demonstrate the applicant has a reduced mental state.
Sentencing considerations
The principles of general application for the passing of sentences in contempt cases similar to the present were usefully considered in the decision in Wood v Staunton (No 5).[3] These principles have been applied a number times in cases brought under the Act. The parties accept that a number of the factors discussed in Wood v Staunton (No 5) are relevant to the circumstances of the current matter. These were outlined in the course of oral submissions before me.
[3](1996) 86 A Crim R 183, 185.
These particular factors include the seriousness of the contempt proved; whether the contemnor was aware of the consequences to himself of what he did; the actual consequences of the contempt on the relevant trial or inquiry; whether the contempt was committed in the context of serious crime; the reason for the contempt; whether there has been any apology or public expression of contrition; the character and antecedents of the contemnor; questions of general and personal deterrence; and denunciation of the contempt.
I have had regard to the above factors in determining the appropriate sentence in the present case.
Sentencing Purposes
Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed. These purposes apply to sentences imposed for contempt and I have had regard to them in determining the sentence to be imposed in this case.[4] A particular purpose for which a sentence may be imposed is to punish the offender in a manner which is just in all the circumstances. I must approach the task by passing a sentence that is just and proportionate to the offending, taking into account the offending, and the circumstances of the offender.
[4]R v Murray [2018] VSC 133; see also Rich v Attorney-General [1999] VSCA 14 [22] and [46]–[47] (Winneke P, with whom Callaway and Buchanan JJA agreed); R v The Herald and Weekly Times Pty Ltd [2008] VSC 251 [42]–[52] (Kyrou J).
General deterrence
General deterrence is a paramount sentencing consideration in offences of the type committed by the respondent. The provisions of the Act are intended to be a powerful weapon in the armoury against organised crime, and those refusing or failing to comply with its provisions should understand that stern punishment awaits if they fail to comply with those provisions. In DPP v Debono,[5] Kyrou J made it quite clear that:
the compulsory evidence provisions in the Act are important elements in achieving the Act’s purpose of combating organised crime in this State. A refusal by a person brought before the Chief Examiner to take an oath or to make an affirmation can significantly frustrate the Act’s purpose. It is therefore necessary for the sentence that is imposed on you to be such as to deter others from engaging in similar conduct.
[5](2012) A Crim R 194.
Denunciation
The community expects that conduct of the type carried out by the respondent should be strongly denounced by the courts. It is appropriate in a case of this kind to include denunciation as a significant sentencing consideration.
In making an assessment of what weight should attach to this aspect of the sentencing task, I note it is not possible to identify why the offending took place. Before me, the respondent advanced no reason for his commission of the offence, and his approach before the Acting Chief Examiner does not assist in drawing any reliable conclusion. Accordingly, there is no explanation that may mitigate his offending and thus ameliorate the weight I should give to this aspect. However, nor can I conclude this aspect should be given greater weight due to any motivation of the respondent’s being directed towards an adherence to a ‘code of silence’. I am simply not able to say.
I am also constrained in drawing clear conclusions about the level of the respondent’s moral culpability due to the paucity of information provided as to any reasons or background for why the offending was committed.
Specific deterrence and community protection
I am not satisfied that considerations of specific deterrence are a significant factor in the assessment of the appropriate sentence to be imposed on the respondent in this matter. There is no material before me to suggest a conclusion that the respondent is likely to be called before the Chief Examiner again and there is a risk the respondent might commit the same, or a similar, offence again. Similarly, I do not think that the sentence which I will impose requires a significant component directed towards the protection of the community.
Parsimony
Applying the principles set out in s 5 of the Sentencing Act, a court must not impose a sentence that is more severe than that necessary to achieve the purpose or purposes for which the sentence imposed. I have had regard to this principle in determining the sentence in this matter.
Submissions of the parties
Submissions for the applicant
The applicant submitted that the respondent’s offending was a serious example of the offending. It was argued the respondent’s conduct was deliberate and calculated, occurring in the face of legal advice at his disposal at the time the offence was committed. Further, it was submitted that as a period of eight days had elapsed between the respondent receiving the witness summons to attend the examination, and his actual appearance, that the offending had occurred in circumstances where the respondent had a significant period of time to reflect on the course he proposed to take at the examination.
Further to the submission that the sentence passed on the respondent must be a custodial one, it was argued that the sentence should be totally cumulative to the sentence the respondent is currently undergoing. Although this was the applicant’s primary position, ultimately there was an acceptance of the possibility it was open to pass a sentence that contained some element of concurrency with the sentence he respondent is currently undergoing.
Submissions for the respondent
The respondent submitted that in sentencing the respondent, this Court should have regard to his admission to the offending conduct, the factors listed by Dunford J in Wood v Staunton (No 5) and the principle of totality.[6]
[6](1996) 86 A Crim R 183, 185.
The respondent pointed to the respondent’s relatively young age, his difficult upbringing, his current situation in serving a long sentence and having been remanded for the first time in [redacted] 2016, his limited criminal background, that his prospects for rehabilitation were still alive, and that a sentence passed should give encouragement to that objective.
The respondent also referred me to various past decisions where sentences for similar offending had been imposed and submitted an overall range of sentences were identifiable from a survey of those cases. The respondent submitted that there was nothing in the circumstances of this case, and this offender, that should take a sentence beyond such range.
The respondent submitted that I should not pass a sentence that was crushing on the respondent, and that it should reflect a degree of concurrency with the sentence he is currently undergoing.
Discussion
The seriousness of the offending and the contempt committed in the context of serious crime
Given the purpose of the relevant legislative scheme, the applicant’s offending was serious and calls for the imposition of a sentence that gives effect to considerations of general deterrence and denunciation. The relevant enquiries were thwarted by the respondent’s conduct.
I am not in a position to assess the value of what information the respondent might have provided to the Chief Examiner. To do so would be speculative, and there is no material before me to make an assessment as to any impacts of the respondent’s refusal. However, the frustration of the examination is to be assessed in the context of the purposes of the Act, which requires the Chief Examiner to reach a level of satisfaction that an examination is justified. The refusal to be sworn in these circumstances confirms that offending of this kind is to be taken very seriously, as it has the tendency to interfere with the administration of justice.
The respondent’s awareness of the consequences to himself
The respondent’s refusal to be sworn was a blatant and calculated decision not to cooperate, with a clear understanding of the consequences. The implications of his contemptuous conduct in failing to cooperate with the Acting Chief Examiner were clearly drawn to his attention. He was represented by Counsel at the time the offending took place, and the matter was stood down in order for the respondent to consult his Counsel. It is reasonable to conclude that the respondent had received legal advice about the circumstances that had arisen before the Acting Chief Examiner. Thus, it is clear the respondent was aware of the consequences to him should he refuse to take the oath or give an affirmation, and his continued refusal to do either of those things was deliberate and considered.
The consequences of the contempt on the inquiry
The examination was directed towards the identification of a person or persons [redacted]. The two enquiries are un-related and separated in time. By virtue of the legislatively mandated requirements that the Chief Examiner is obliged to comply with, it can concluded that the respondent had significant evidence to give in the proposed examination before the Acting Chief Examiner. Beyond that, I can make no further conclusion.
The reason for the contempt
In making an assessment of the moral culpability of the respondent, I take into account that whilst his approach was deliberate, I am not able to reach a safe conclusion about the reason why he committed the offence. This is because no explanation for the offending was offered and there is no other material before me which would permit a positive conclusion to be made.
It is well established that in contempt cases before the Chief Examiner, concerns by a respondent for his or her safety, or the safety of others, can be a matter of mitigation. However, I can conclude that the respondent’s refusal in this matter was not associated with an issue about his safety, or the safety of others associated with him. This issue was addressed specifically on the day of the examination, and is demonstrated by the following exchange:
ACTING CHIEF EXAMINER: Thank you. Now, the next matter I must consider is the safety of the witness. So, Mr [Brigham], I am required to ask you, do you have any concerns about the safety of yourself or anybody connected with you in relation to your appearance here today?
MR [BRIGHAM]: No.
ACTING CHIEF EXAMINER: Thank you. Mr [Brigham], will you have any safety concerns if a transcript of your evidence was ever to be released or published?
MR [BRIGHAM]: No.
Thus, the respondent was specifically asked to address the question of any concerns about his safety at the examination. Having been given that opportunity, he did not reveal any concerns on that particular issue. Nor was any submission advanced on the hearing that put forward any concerns held by the respondent as to his safety at any time.
Ultimately there is no explanation offered as to why the applicant refused to be sworn. However, on the basis of the evidence, I can conclude the reason was not related to a question of his safety, or the safety of others. Beyond that is simply speculation.
The character and antecedents of the respondent, whether there has been any apology or public expression of contrition
The mitigation put on the respondent’s behalf concentrated on the respondent’s difficult personal background, and disappointments he suffered in his upbringing. Specifically, the respondent was able to point to his admission of guilt, the utilitarian benefit of that admission, and his youthful age. I do take that into account and further note the applicant’s conduct was not abusive before the Acting Chief Examiner.
In respect of the applicant’s prospects of rehabilitation, as no reason was offered for his offending, it is difficult make positive conclusions about those prospects. However, I take into account that an apology was offered from the Bar table during the course of the hearing. The value of that apology as a factor in mitigation should be weighed in the context of the respondent’s reluctance to explain the reasons for his conduct. Further, it cannot be said that the apology, coming late as it did, was complimented by a purging of the respondent’s offending. However, I do note that the respondent’s attitude towards the Acting Chief Examiner, and the process, was not abusive, or characterised by putting forward an ‘agenda’ that challenged the objectives of the legislative scheme.
I am satisfied that I should not make an adverse finding about the applicant’s prospects for rehabilitation. He does not have a long criminal history and he has admitted guilt to the offending that occurred before the Acting Chief Examiner. This limited history, and his non-hostile attitude towards the Examiner and these proceedings, in my opinion provide a degree of hope for his future.
Conclusions
In making an assessment of the appropriate sentence to be passed, I have been provided with and had regard to a number of past cases dealing with the sentencing of offenders who have committed similar offences as the respondent.
It is not appropriate to undertake a detailed comparative exercise comparing one sentencing outcome with another. Each case is different in its facts and circumstances, and the personal circumstances of the offender. It is sufficient to observe that past sentencing decisions, whilst not establishing the boundaries of where sentences should lie, are useful to serve as yardsticks and illustrations against which a possible sentence may be compared.
The respondent accepts that it is appropriate in the circumstances of this case to pass a sentence of imprisonment. The essential difference in approach between the parties is that the applicant primarily submitted that a sentence should be passed that has no concurrency, whereas the respondent submits that the sentence should possess some degree of concurrency.
In my opinion the appropriate sentence taking into account all the factors placed before me is six months imprisonment. However, that is not the end of the matter. I am obliged to consider the principle of totality.
Totality
As observed, the respondent is currently serving 8.3 years, with a non-parole period of 5.9 years. This is a substantial sentence for a man who is 26 years of age and had no prior criminal history to that point.
I acknowledge the applicant’s submission that a totally cumulative sentence should be passed on the respondent. However, in my opinion, a degree of concurrency with the sentence the respondent is currently serving is necessary. That is, to adequately fulfil the requirement to pass a proportionate outcome, which reflects the seriousness of the respondent’s offending and personal circumstances, but also reflects the need to pass a sentence that would not crush the hopes of the respondent in what is currently a quite lengthy sentence.
In large part, the need for significant cumulation is to ensure that the scheme provided under the Act is not rendered futile, or regarded as a toothless tiger by those who may be inclined to not comply with its provisions in the future. A message needs to be sent to those who may find themselves in the position of the respondent being brought before the Chief Examiner. That is, that where an offender is currently serving a sentence, offending such as the present will result in a punishment that can be readily identified and is additional to any existing sentence.
Accordingly, I order that two months of the sentence imposed is to be served concurrently with the sentence the respondent is currently serving, making four months imprisonment the period to be served cumulatively.
Given the respondent is serving a sentence that is of lengthy duration, an order for costs would be, in my view, an unnecessary burden. I decline to make on order of costs against the respondent.
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