R v Debono
[2013] VSC 413
•12 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0020
| The Queen |
| v |
| Christian Bernard Debono |
---
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 | |
---
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.
---
| 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 a person who, without reasonable excuse, contravenes sub-s(3) is guilty of an indictable offence.
On 13 August 2008, a coercive powers order was made by this Court which was later amended and extended. The coercive powers order enabled the Chief Examiner to examine the circumstances surrounding the murder of Wayne Keith Boyd in November 2001. It goes without saying that murder is a very serious crime.
The circumstances of your offending on 21 May 2009 were as follows. On that day, you were brought before the Chief Examiner to give evidence in relation to the murder of Mr Boyd. You were accompanied by your lawyer. The Chief Examiner advised you that he required you to give evidence on oath or affirmation and that it was a criminal offence to fail to comply with this requirement.
When the Chief Examiner asked you whether you would take an oath or make an affirmation, you refused to do so, stating ‘No, I’m just not doing it.’ You confirmed to the Chief Examiner that you understood that you may be charged with a criminal offence. When you were offered the opportunity to say anything about your refusal to take an oath or make an affirmation, you declined to do so.
By pleading guilty to the offence, you have accepted that you did not have a reasonable excuse for refusing to take an oath or make an affirmation.
Personal circumstances
You were born on 28 December 1972 and are 40 years of age. You were 36 years of age at the time of the offending.
You have told the psychologist, Pamela Matthews, that your father drank heavily and was violent towards your mother and you. Your father left the family when you were 11 years old and you have not seen him since then.
You had behavioural problems as a student. You started using drugs from the age of 13 and continued to do so until 2006. Your substance abuse began with cannabis, followed by pills such as Rhohypnol, and speed in conjunction with cannabis until the age of 18. You then started taking heroin and alcohol in addition to the other substances and you also occasionally used hallucinogenics, ecstasy and cocaine. You left school at the age of 14.
In 2006, you began a four year relationship with Jodie Falzon. During that relationship, your daughter Molly was born. She is now five years old. That relationship ended in 2010. For the last eight months you have been in a relationship with Annie George. You both live with your 67 year old mother.
You began work for the first time in 2007 as a casual food process worker for Diamond Valley Pork Pty Ltd. After an interruption in your employment with that company due to a period of imprisonment, you resumed your position on 21 June 2010 and worked there until 9 November 2012. You again worked for the company from 20 May 2013 until the plea hearing.
Seriousness of offence and maximum penalty
As I have already stated, contravention of s 36(3) of the Act constitutes an indictable offence. The maximum penalty is five years imprisonment.
This is a very serious offence. You committed it deliberately, after you were informed by the Chief Examiner that refusal to take an oath or make an affirmation was a criminal offence. Your offence was committed in the presence of your lawyer and in full knowledge of the likely consequences. Such flagrant disobedience of the law deserves strong denunciation.
As I have already stated, by pleading guilty, you have accepted that you did not have a reasonable excuse for refusing to take an oath or make an affirmation. At the plea hearing, your counsel suggested that your refusal can be explained by concerns about your safety, given that you were in prison at the time that you were brought before the Chief Examiner. Your counsel asked me to take into account that prisons are notoriously dangerous places for prisoners who are perceived to be cooperating with the authorities.
In her report, Ms Matthews stated that you told her that you were ‘in danger without saying anything’. She also stated that you have adopted a ‘no comment’ approach to questions because of your belief that you were tricked when cross examined at 15 years of age. You did not provide any explanation to the Chief Examiner for your refusal to take an oath or make an affirmation. In particular, you did not voice any safety concerns before the Chief Examiner. Accordingly, there is insufficient evidence to enable me to conclude on the balance of probabilities that safety concerns played any part in your refusal to take an oath or make an affirmation.
Accordingly, you stand to be sentenced as a person who has deliberately flouted the law because you did not want to cooperate. You do not have a credible explanation, let alone a reasonable excuse, for your offending.
Guilty plea and remorse
You were charged in July 2009 and in October 2010 you were committed to stand trial. Between September 2011 and March 2013 you made various applications to the Court with a view to having the charge quashed on legal grounds or to clarify the elements of the offence and the onus of proof. It is common ground that your applications were not unreasonable in the circumstances of your case. It is also common ground that you indicated that you would be pleading guilty at the first practical opportunity after the last of your applications was determined against you. Although your guilty plea would have been influenced by your lawyers’ assessment of the prospects of conviction, nevertheless your plea requires an appropriate sentencing discount.
It has not been suggested by your counsel that your guilty plea indicates that you are remorseful. There has been no evidence of any remorse.
Criminal history and rehabilitation
Your drug abuse led you to be involved in criminal activity. Your criminal record extends over the period from July 1993 until June 2008 and includes findings of guilt or convictions for various offences, including theft and obtaining property by deception. The most serious offences were convictions in April 2003 for kidnapping and reckless conduct endangering life and in June 2008 for trafficking a commercial quantity of methylamphetamine and trafficking cannabis.
The 2003 kidnapping and reckless conduct endangering life convictions related to events that took place in 2002. You were sentenced to four years imprisonment, with a non-parole period of two years. The 2008 drug convictions also related to events that took place in 2002. You were sentenced to three years imprisonment, with a non-parole period of two years. With a period of pre-sentence detention of 118 days, you were released on parole in February 2010. You completed a 12 month parole period without incident. You have also answered your bail in relation to the current offending without incident.
Apart from the current offending, you have not offended since 2002 and have not abused drugs or alcohol since 2006. The correspondence which the Court has received from Ms Falzon, Ms George, Ms George’s mother and from Diamond Valley Pork Pty Ltd indicates that you have successfully rehabilitated yourself. Although your relationship with Ms Falzon ended in 2010, you remain friends and share responsibility for the upbringing of your daughter. You have had a positive impact on Ms George’s life and have helped her overcome her drug addiction. You continue to have a good relationship with your mother. Importantly, you are a loving and caring father towards your young daughter and play an important role in her life. Both your daughter and Ms George rely on you and will be affected by your absence due to imprisonment.
Two representatives of Diamond Valley Pork Pty Ltd have given very positive references about your job performance and the company’s ongoing support for you. They say that you are a regular and reliable employee and a trusted and valued member of their team. You help out other employees and you are training to be a slicer.
While you were in custody, you undertook drug and alcohol programs and individual counselling.
I am satisfied that you have demonstrated a willingness and a capacity to rehabilitate yourself and to be a law abiding member of the community who is able to take responsibility for others. This is a significant mitigating circumstance.
Delay
As I have already stated, you committed the offence on 21 May 2009, you were charged in July 2009 and in October 2010, you were committed to stand trial. However, the trial would not have occurred until 5 August 2013. Some of the delay is due to the various court proceedings that you previously initiated and to which I have already referred.
Inordinate delay is a relevant sentencing consideration based not on whether the delay was satisfactorily explained, but rather, on the effect of the delay on the offender.[3] In your case, the delay has had a dual impact. First, as you have stated to Ms Matthews, the delay in the resolution of the charge has been unsettling and disruptive. Secondly, during the period of the delay, and notwithstanding its unsettling consequences, you have continued to demonstrate your effective rehabilitation. I have taken these matters into account in determining your sentence.
[3]R v Merrett (2007) 14 VR 392, 400 [34]–[35].
Mental and physical health
Ms Matthews assessed you as suffering a moderate level major depressive disorder and as having residual symptoms of post-traumatic stress disorder, both stemming from your unhappy childhood. However, you have never received any medical treatment for these conditions. Your cognition is average, with insight. In Ms Matthews’ opinion, any further imprisonment will not change your mental state and functioning other than to worsen your depressive symptoms and to separate you from your daughter.
Your counsel has not relied on any of the principles in the case of R v Verdins[4] and has expressly disavowed any link between your mental state and moral culpability. According to your counsel, your mental state is relevant to sentencing on the basis that imprisonment would be onerous for you in the sense explained by Ms Matthews.
[4](2007) 16 VR 269, 276 [32].
Although your mental state is not a significant mitigating consideration in the circumstances of your case, nevertheless I have taken it into account. I have also taken into account that you are in good physical health.
Deterrence
Specific deterrence is not a significant sentencing consideration in your case because I am satisfied that you are likely to continue your successful rehabilitation. I am confident that, by not being involved in drugs, you will abstain from criminal activity. However, it is important that your determination not to engage in criminal activity extends to not committing a crime such as the present one through failure to comply with a mandatory legal requirement. Being a law abiding citizen requires refraining from doing illegal acts as well as doing things that the law requires be done.
I agree with the Crown that general deterrence is a key sentencing consideration in your case. As I have already explained, 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.
Your counsel submitted that, in the case of an offence under s 36(4) of the Act, it is relevant for the sentencing judge to take into account whether the offending conduct actually frustrated an investigation or prevented the laying of charges. He relied on observations made by Coghlan J on 13 December 2011 in a matter whose details cannot be published. Your counsel contended that I should take into account, in your favour, the fact that your offending did not frustrate the ability of law enforcement authorities to ultimately charge someone with the murder of Mr Boyd.
While the consequences of the offending conduct are obviously a sentencing consideration, in a case such as the present there are practical difficulties in a sentencing judge embarking on an enquiry as to what, if any, effect a person’s failure to take an oath or make an affirmation has had on a particular investigation. Without evidence from the law enforcement officers who were involved in the investigation, the sentencing judge could not determine whether or not the offending conduct had any adverse effects on the investigation.
In the present case, even though a person has been charged with the murder of Mr Boyd, I do not know whether, had you not engaged in the offending conduct, the investigation into Mr Boyd’s murder would have resulted in the laying of charges much earlier at lesser cost or in the investigating authorities obtaining more evidence than they currently have.
Although I have taken into account the matters raised by your counsel, overall, the sentence to be imposed upon you must be sufficient to send a clear and unambiguous message to persons who in the future may be brought before the Chief Examiner to give evidence, that a refusal to take an oath or make an affirmation will be met with condign punishment.
In sentencing you, I have taken into account the sentencing considerations set out in the Sentencing Act 1991, including the matters set out in s 27(1A) of that Act in relation to suspended sentences.
Sentence
At the plea hearing, the Crown submitted that an appropriate sentencing range in your circumstances was a term of imprisonment of six to 18 months.[5] The Crown acknowledged that suspension of part of the sentence was an appropriate sentencing option.
[5]In arriving at this range, the Crown relied on Chief Examiner v Camilleri [2006] VSC 442 (8 December 2006); Corruption and Crime Commission v Allbeury [No 2] [2011] WASC 26 (4 February 2011); a restricted decision by Coghlan J made on 13 December 2011; Hannaford v HH [No 2] [2012] FCA 560 (30 May 2012).
Your counsel acknowledged that a sentence of imprisonment was appropriate and did not disagree with the sentencing range put forward by the Crown. He submitted, however, that the strong mitigating circumstances warrant the sentence being wholly suspended.
In my opinion, the deliberate and flagrant nature of your offence, the need for general deterrence and the other sentencing considerations to which I have referred require an immediate custodial sentence. However, there are also compelling mitigating circumstances including, in particular, your successful rehabilitation.
I am not persuaded that a wholly suspended sentence is appropriate. I am, however, satisfied that it is desirable in the circumstances that a significant part of the sentence be suspended to enable you to rejoin the community and your family earlier than would otherwise be the case so that you can continue to rebuild your life as a family man and a valued member of the community.
Christian Bernard Debono you are convicted and sentenced to 16 months imprisonment.
I propose to order that all but five months of your sentence be suspended for a period of 16 months. The purpose of the proposed order is to enable you to be released from prison after five months. After your release, you will not be on parole and your freedom will not be constrained in any way. However, if you commit another offence within 11 months of your release and that offence is punishable by imprisonment, then there will be two consequences. First, you will be guilty of an additional offence punishable by imprisonment for up to three months. Secondly, it is very likely that an order will be made requiring you to serve the proposed suspended period of imprisonment of 11 months. It is therefore very important that you do not commit any offences during the 11 months of your sentence which will be suspended.
Having given you an explanation of the purpose and effect of the proposed suspended sentence, I now order that all but five months of the sentence of 16 months be suspended for a period of 16 months.
I declare that you have served seven days of pre-sentence detention, not including today, and that this period be reckoned as already served under this sentence.[6]
[6]Sentencing Act 1991 s 18(1) and (4).
I declare that but for your plea of guilty I would have sentenced you to 28 months’ imprisonment with a non-parole period of 22 months, and I direct that that fact be entered in the records of the Court.[7]
[7]Sentencing Act 1991 s 6AAA(1) and (4).
---
---
5
5
0