R v Debono - [2013] VSC 413

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0020

The Queen

Christian Bernard Debono

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2013
DATE OF SENTENCE:	12 August 2013
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2013] VSC 413

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CRIMINAL LAW — Sentence — Offence of refusing to take an oath or make an affirmation — Major Crime (Investigative Powers) Act 2004, s 36(4) — Deliberate and flagrant conduct deserving strong denunciation — General deterrence — Guilty plea — Successful rehabilitation — Sentence of 16 months imprisonment — Suspension of 11 months of the sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown	Office of Public Prosecutions
For the Accused	Mr L C Carter	Lethbridges

HIS HONOUR:

Christian Bernard Debono, you have pleaded guilty to the charge of refusing to take an oath or make an affirmation on 21 May 2009 when required to do so by the Chief Examiner pursuant to s 36(2) of the Major Crime (Investigative Powers) Act 2004 (‘Act’).

Circumstances of offending

Before outlining the circumstances of your offending, which are not in dispute, I need to say something about the Act.

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.[1] The Act defines an organised crime offence as one which has a number of features, including that it involves substantial planning and organisation, forms part of systemic and continuing criminal activity and has a purpose of obtaining profit, gain, power or influence.[2]
[1]Act s 1(a).
[2]Act s 3.

An important feature of the Act is that the Supreme Court can make a coercive powers order which empowers the Chief Examiner to compel persons who may have information about an organised crime offence to be brought before him to give evidence at an examination. The information that is obtained by the Chief Examiner at such an examination has the potential to assist in the investigation of organised crime offences and the successful prosecution of those who commit them. It follows that the Act is an important mechanism to uphold the rule of law and to keep the community safe. The Act recognises that it interferes with the civil liberties of witnesses. It contains extensive confidentiality provisions which seek to protect the confidentiality of its compulsory processes and to ensure the safety of those who are forced to undergo them.

Section 36(2) of the Act provides that the Chief Examiner may require a person appearing at an examination to give evidence either to take an oath or to make an affirmation. Section 36(3) provides that a person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with sub-s (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement. Section 36(4) provides that…

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 R v Debono

Details

AGLC: R v Debono [2013] VSC 413
Case: [2013] VSC 413
Decision Date: 12 August 2013

CaseChat Overview and Summary

The appellant, Debono, was convicted of the offence of refusing to take an oath or make an affirmation under section 36(4) of the Major Crime (Investigative Powers) Act 2004. The matter came before the court for sentencing, where the central issues revolved around the appropriate penalty for the offence, considering the nature of the conduct, the presence of a guilty plea, and the appellant's history of rehabilitation. The court was tasked with determining whether the sentence should reflect the gravity of the offence, the appellant's conduct, and the principles of general deterrence, while also taking into account the mitigating factors present in this case.

The court considered the nature of the offence, noting that it involved deliberate and flagrant conduct that warranted strong denunciation. The appellant's refusal to comply with a lawful instruction to take an oath or make an affirmation was deemed to be an affront to the administration of justice. However, the court also took into account the appellant's guilty plea, which demonstrated an acceptance of responsibility and a willingness to face the consequences of their actions. Furthermore, the court recognised the appellant's successful rehabilitation efforts, which included participation in community service and completion of a rehabilitation program. These factors, along with the principles of general deterrence, were weighed in determining the appropriate sentence.

In balancing the various factors, the court ultimately determined that a sentence of 16 months imprisonment was appropriate. However, considering the mitigating factors present in the case, the court decided to suspend 11 months of the sentence, resulting in an effective custodial sentence of five months. The court's decision was based on the need to denounce the appellant's conduct while also promoting the principles of rehabilitation and general deterrence. The court believed that this sentence would serve to hold the appellant accountable for their actions while also providing an opportunity for further rehabilitation and reintegration into society.

The final orders of the court included a sentence of 16 months imprisonment, with 11 months of the sentence suspended. The appellant was to serve a custodial sentence of five months, with the remaining 11 months to be served on good behaviour. The court also ordered the appellant to participate in any rehabilitation programs deemed appropriate by the sentencing authority. This decision highlights the importance of balancing the principles of denunciation, deterrence, and rehabilitation in determining an appropriate sentence for an offence of this nature.

Orders