R v Ford (a pseudonym)
[2018] VSC 494
•31 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0060
| THE QUEEN (on the application of the ACTING CHIEF EXAMINER) | Applicant |
| v | |
| MAX FORD (a pseudonym) | Respondent |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2018 |
DATE OF SENTENCE: | 31 August 2018 |
CASE MAY BE CITED AS: | R v Ford (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 494 |
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CRIMINAL LAW – Sentence – Contempt of the Chief Examiner – Plea of guilty – Refusal to take oath or make affirmation – Contempt in respect of examination into series of crimes – Where contempt contumacious – Youthful offender – No relevant prior convictions – Sentence of five months’ detention in youth justice centre – Major Crime (Investigative Powers) Act 2004 ss 36, 49.
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| Appearances | Counsel | Solicitors |
| For the Applicant | Mr A Imrie | Office of the Chief Examiner |
| For the Respondent | Mr P J Smallwood | Stary Norton Halphen |
HIS HONOUR:
Max Ford, you have pleaded guilty to a charge of contempt of the Chief Examiner brought by a written certificate of charge issued in the name of Joanne L Smith, Acting Chief Examiner, pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). On 13 March 2018, in circumstances on which I will expand shortly, you refused to take an oath or to make an affirmation as required by s 36(2) of the Act. That conduct constituted contempt of the Chief Examiner under s 49(1) of the Act.
Maximum penalty
The Act specifies no maximum penalty for contempt of the Chief Examiner under s 49(1). The penalty is at large. The Act provides a maximum penalty of five years’ imprisonment for the offence of refusing or failing to take an oath or to make an affirmation under s 36(3). It has been held that this maximum penalty is a useful comparator for sentencing under s 49 of the Act.[1] Before me, both sides took this approach, which I agree is correct.
[1]See, eg, R v QF [2014] VSC 81 (Croucher J), R v Murray [2018] VSC 133 (Riordan J) and R v Brigham [2018] VSC 284 (Champion J).
Background
On 19 October 2017, Coghlan JA made a coercive powers order under s 9 of the Act. The order specified a number of organised crime offences, being [redacted].
On 22 February 2018, Ms Smith issued a witness summons pursuant to s 15 of the Act requiring you to attend before her in North Melbourne on 13 March 2018. The summons specified the offences in respect of which you were required to give evidence. The issuing by Ms Smith of the summons indicates that she was satisfied that it was reasonable in the circumstances for the summons to be issued, after consideration of matters including the evidentiary or intelligence value of the information sought to be obtained from you.[2]
[2]Section 15(4) of the Act.
You attended as required on 13 March 2018 at the premises of the Office of the Chief Examiner in North Melbourne, in company with your father and your legal representative, Ms Natalie Tenaglia of Claudia Grimberg Solicitors. Your father remained outside the examination room while you attended inside with your solicitor. The proceedings were recorded by audio-visual means, and I have viewed the entirety of the proceedings,[3] which Ms Smith conducted in a most methodical and patient manner.
[3]The DVD and transcript of the proceeding became Exhibit C on the plea.
Ms Smith attended to the various preliminary matters required under s 31 of the Act, and informed you of the crimes in respect of which you were to be questioned. At an early stage of the proceedings, you said, ‘I’ve got no evidence to give anyway.’[4] Shortly after this, upon being informed that you would not be able to tell your father what happened inside the hearing room, and upon being asked if you understood this, you said, ‘Yes, I understand that and if it’s something that youse [sic] want me to answer all questions, I haven’t got an idea of the questions, I’d rather get taken into custody.’ A little later, you said, ‘I didn’t even want to do this interview … Oh, youse – can you just – can you just remand me then?’[5]
[4]Transcript of Proceedings before the Chief Examiner (13 March 2018) 7.
[5]Ibid 7.
Those early statements by you during the hearing were indicative of the decision you had made at an early time, maintained throughout the proceeding, that you were not going to cooperate in the process.
When Ms Smith informed you that you would be directed to take an oath or to make an affirmation in the form prescribed by the regulations, and asked for your preference, you said, ‘I have no evidence to give youse at all.’[6] Ms Smith explained the terms of the oath or affirmation you would be required to take, and you said that you would choose neither of the options.
[6]Ibid 16.
After a brief adjournment that gave you the opportunity to consult with your lawyer, you returned to the hearing room. Ms Smith informed you that the proceedings were not intended to cause you grief or to get you into trouble, and that she had no interest in having you charged with any offences, but that she believed that you had some information that could assist her in her understanding of what had gone on. You replied, ‘I’d rather be dead than start saying anything. I have nothing to say, straight up … No, I have nothing to say. That’s it. Like, I – I’ve pleaded guilty to my charges already from the start. Youse are trying to get information out of me to get other people in trouble. I’m the wrong – youse have the wrong person to do that ‘cause I’ve got nothing to say at all, honestly.’[7] Shortly afterwards, you said, ‘Like, if youse want anything – youse had my phone intercepts, I was getting surveillance for the past couple of weeks before I got arrested. You can gather all the information together – put that together and youse can find your information. Me, myself, I have nothing to say whatsoever, nothing at all.’[8]
[7]Ibid 18.
[8]Ibid 19.
When you maintained your refusal to be sworn after the brief adjournment, Ms Smith explained to you that if you refused to be sworn or to make an affirmation, a certificate of charge and a warrant for your arrest would be issued and you would be taken immediately to the Supreme Court. You invited her to take you to the Supreme Court, and said, ‘I’ll get charged with that. I’m not a snitch.’[9] Ms Smith continued to seek your cooperation, and repeatedly warned you of the consequences of continuing on your course. She afforded you the opportunity of a further adjournment, during which it is apparent you again spoke to your legal representative.
[9]Ibid 21.
When you persisted in your refusal to be sworn after this adjournment, Ms Smith informed you that a certificate of charge needed to be prepared, and that the matter would be adjourned briefly in the interim. You told her that you were going to leave and that you would not re-attend. She informed you that that would constitute a further offence. In spite of that, you said to her, ‘So I’m gunna get my warrant anyway, so I’m just gunna leave … I’m not coming back. I’ll get arrested.’ With that, you stood up and walked out of the hearing room, saying to the police member who was present, ‘See you, officer.’[10] By that time, it was 11:42 am.
[10]Ibid 28.
Shortly after this adjournment, your father was brought into the hearing room. It was explained to him that if you maintained your position, you would be charged with contempt.
At 1:13 pm, the matter resumed. Your solicitor informed Ms Smith that, true to your word, you had left the premises, informing her that you were going home. Ms Smith then read the certificate of charge into the transcript.
I note that during the whole of the proceeding when your were present, Ms Smith was at pains to ensure that you had no concerns for your safety. Repeatedly, throughout the examination, you made it clear that you had no such concerns. On one occasion, you did say that you were scared. That did not accord with your other responses or your demeanour throughout the proceedings. Your counsel made it clear that your refusal to be sworn had nothing to do with fear.
The procedural chronology of this matter from the time of the issuing of the certificate of charge is set out in the outline of submissions filed on behalf of the applicant[11] on the plea. I do not set it out in full, but note that you were arrested and taken before Coghlan JA in this Court on 13 March 2018. You were bailed to appear at a directions hearing on 17 April 2018. You failed to answer your bail on that day and your bail was extended in your absence to 24 April 2018. As a result of discussions between the parties, the contempt proceeding was adjourned from 24 April 2018 to enable you to attend for examination and to purge your contempt. A resumption of your examination before the Acting Chief Examiner was scheduled for 16 May 2018. Again, you failed to appear. A further warrant was issued for your arrest. On 25 May 2018, you were arrested and taken before Bell J. The proceeding in this Court was adjourned until 15 June 2018 and you were again released on bail. The matter was eventually set down for trial on 20 August 2018. On 30 July 2018, through your legal representatives, you indicated an intention to plead guilty. On 3 August 2018, you were remanded in custody on unrelated matters. On 20 August 2018, through your counsel, Mr Smallwood, you pleaded guilty before me to contempt of the Chief Examiner.
[11]Exhibit F on the plea.
Your prior offending and current custodial status
On [redacted], you were sentenced at Melbourne Children’s Court to an eight-month youth attendance order in respect of a number of charges to which you had pleaded guilty. The charges included armed robbery, criminal damage and some driving offences. The armed robbery was one of the offences referred to in the coercive powers order made by this Court on 19 October 2017. The Director of Public Prosecutions appealed against the sentence to the County Court. On [redacted], the Director’s appeal was allowed and you were re-sentenced to a 12-month youth attendance order. You were on this order at the time of the offending, which now brings you before this Court. Your contempt of the Chief Examiner constitutes a breach of the youth attendance order. I have been informed that breach proceedings have been initiated on the basis of non-compliance rather than further offending. I have further been informed by your counsel that you have been assessed as suitable for a youth justice centre order in respect of those breach proceedings.
Significantly, you were arrested on [redacted] and on [redacted] taken before Melbourne Magistrates’ Court, where you were remanded in adult custody in relation to a number of charges. A committal mention is listed in that court on [redacted] in relation to charges of armed robbery, trafficking cocaine, trafficking cannabis, trafficking methylamphetamine and some dishonesty offences. The offending is alleged to have occurred between [redacted] and [redacted] and is unconnected with the offences the subject of the coercive powers order made by Coghlan JA.
Is a youth justice centre order open?
A preliminary issue was raised at the plea hearing as to whether this Court had the power to impose a youth justice centre order for the charge that you now face. Counsel were unanimous in their view that such a disposition was open. I ruled in favour of that proposition. I have today provided reasons for that ruling.[12]
[12][2018] VSC 491.
Sentencing principles for this type of contempt
The offence of contempt of the Chief Examiner is a serious one. Recently, when considering an appeal from a sentence of Riordan J for such an offence, the Court of Appeal said:
Section 49 created a statutory form of contempt and carried with it the consequence that there is no maximum sentence prescribed. Its purpose is to enable the gathering of evidence and intelligence in circumstances where, for obvious reasons, that evidence would otherwise remain unavailable to investigators. The abrogation of the privilege against self-incrimination, and the restrictive secrecy regime that surrounds the making of a coercive powers order and examinations under the Act, highlights the importance that the Act attaches to the obtaining of evidence and intelligence about organised crime offences.
The ability to obtain such information depends on being able to enforce the obligation imposed on witnesses, who will often be reluctant or recalcitrant, to answer questions before the Chief Examiner. For that reason, deterrence and punishment are critical factors in sentencing for an offence against s 49 of the Act.[13]
[13]Murray v The Chief Examiner [2018] VSCA 144 (Whelan, Beach and Niall JJA) [78]–[79].
When considering a number of sentences imposed in this Court for contraventions of s 49 of the Act, the Court of Appeal went on to observe:
Those cases do demonstrate that a contravention will usually, if not invariably, call for a term of immediate imprisonment. That fact underscores the seriousness of the offence.[14]
[14]Ibid [81].
Submissions in this case
Both Mr Smallwood on your behalf and Mr Imrie on behalf of the applicant filed outlines of submissions on the plea hearing.[15] Both relied on their outlines but also made oral submissions. They both asserted in their outlines and submitted before me that your offending called for the imposition of a custodial sentence of some sort, but that in the circumstances of this case, it should be by way of a period of detention in a youth justice centre.
[15]Exhibits E and F, respectively.
On your behalf, Mr Smallwood, whilst submitting that the contempt was not undertaken in a rude, aggressive or insulting manner, which accords with my perception having viewed the proceeding, acknowledged that yours was a serious contempt that could properly be described as contumacious. The contempt was not the result of an impulsive decision, and was considered in nature. Mr Smallwood advanced no explanation for your conduct beyond the claim that you were distrustful of police, considered that they were out to get you, and as a result were distrustful of the Chief Examiner’s processes. He made no submission that fear was the motivation for your offending. He accepted that your failure to appear before the Chief Examiner on the afternoon of your offending and on 16 May 2018 when arrangements had been made for you to return before her and to purge your contempt were relevant matters to take into account in sentencing you.[16] He agreed that the fact that you were on a youth attendance order at the time of your offence was an aggravating circumstance.
[16]The applicant’s outline at footnote 11 noted that there was agreement as to this matter.
Mr Smallwood submitted that the extent to which you may have been able to assist in the enquiry being conducted fell to be assessed in light of the fact that you have been charged only in respect of one of the armed robberies.
Mr Smallwood submitted that your youth is relevant in a number of ways going to sentence and was a ‘very considerable sentencing consideration in this case.’[17] It would be relevant to the weight to be given to general deterrence, although counsel acknowledged that general deterrence would remain an important sentencing consideration, as would specific deterrence and denunciation. Another reason put forward by counsel as to why your youth was a significant sentencing consideration was the fact that if you were sentenced to imprisonment, you would be exposed to older, more hardened offenders. He submitted that this would be antithetical to the advancement of your rehabilitation and the community’s interest in that rehabilitation. In fact, he went so far as to submit that having regard to your youth, a term of adult incarceration could be potentially devastating and a corrupting experience for you. He prefaced this submission by informing me that you had never previously been sentenced to a period of either detention or imprisonment. You had been on remand for 18 days as at the date of the plea, [redacted]. Your time in custody has been difficult for you.
[17]Transcript of Plea (Supreme Court of Victoria, 20 August 2018, Tinney J) 55 (‘Plea transcript’).
Mr Smallwood pointed to a number of authorities in support of his submission as to the significance of your youth in sentencing you. I have had regard to those authorities, and to the decision in R v Mills[18] and the many decisions before and since that case that have emphasised the very great importance of the youthfulness of offenders when it comes to sentence.
[18][1998] 4 VR 235.
Your counsel made submissions which, as he put it, focused squarely on your youth as a feature that distinguished this case from others that have come before the Court. He briefly dealt with current sentencing practices for contempt, which, as he said, to an extent, illuminated the sentencing task. He noted that sentences of between two and eight months’ imprisonment have been imposed for offending of this kind.
Your counsel did not seek to assert that anything other than a custodial sentence was appropriate in this case. As he put it:
It’s respectfully submitted that a custodial sentence of one form or another is the only disposition available to this Honourable Court which would adequately reflect the sentencing principles which fall to apply.[19]
[19]Plea transcript 71.
Mr Smallwood submitted that the fact that you are currently on remand should not stand in the way of a youth justice centre order being made. He pointed out that under s 333 of the Criminal Procedure Act 2009, if this Court were to impose a youth justice centre order, the Magistrates’ Court would have the power to return you to a youth justice centre for the duration of your sentence. On a practical level, he indicated that in the event of my sentencing you to a youth justice centre order, your legal representatives would apply to the Magistrates’ Court as soon as possible for an order under s 333.
As I have indicated, Mr Imrie for the applicant had filed an outline of his submissions, which became Exhibit E. Not all of the matters contained in the outline were the subject of specific oral submissions, but I took all of the matters to have been relied upon by Mr Imrie in his submissions.
The outline set out the sentencing principles applicable in this case. Amongst other things, counsel set out ten matters put forward by Dunford J in Wood v Staunton (No 5) as relevant matters for consideration in assessing the proper punishment for this type of contempt.[20] Those principles have been cited with approval a number of times in cases concerning the form of contempt before the Court in this case.[21]
[20](1996) 86 A Crim R 183, 185
[21]See, eg, R v Murray [2018] VSC 133 (Riordan J) and R v Brigham [2018] VSC 284 (Champion J).
In dealing with a number of the principles set out by Dunford J, Mr Imrie in his outline submitted that your contempt was a serious example of its kind and was committed in the context of serious criminal offending, that you made a deliberate and calculated choice to commit the contempt and suffer the consequences, that no clear reason for the contempt was discernible from the evidence, that there has been no apology and that there is no evidence of remorse or contrition. In respect of the actual consequences of the contempt, one of the matters mentioned by Dunford J, Mr Imrie submitted that whilst it was not known what precise impact your evidence would have had on the Chief Examiner’s investigation, in light of the obvious satisfaction of the Chief Examiner of the matters contained in s 15 of the Act, and the fact that you had been summonsed to give evidence about serious organised crime offences, your refusal to do so had a tendency to interfere significantly with the administration of justice.
Mr Imrie’s outline emphasised the importance of general and specific deterrence and denunciation, and noted:
The authorities are replete with statements about the need for salutary punishment to ensure that regimes such as the Act do not become a ‘toothless paper tiger.’
He submitted that the fact that your contempt was committed while you were on a youth attendance order was an aggravating circumstance.
In order to assist in the ascertainment of current sentencing practices, Mr Imrie provided a table of cases of offenders sentenced for this type of contempt. The sentences were all terms of imprisonment ranging from 10 weeks to 16 months. In addition, he noted there were six restricted judgments where sentences ranged between two and six months’ imprisonment.
Having regard to the applicable principles, Mr Imrie submitted that a term of confinement was the only appropriate disposition in this case. He did not object to your being assessed for suitability for a youth justice centre order.
Discussion
As the authorities make abundantly clear, contempt in the manner committed by you in this case is a very serious matter. The legislature has provided, through the office of the Chief Examiner, and the various measures set up under the Act, what is intended to be a powerful means of gathering evidence and intelligence that would otherwise not see the light of day. At the heart of the measures is the power of the Chief Examiner to compel the attendance of persons to give evidence at examinations, and to require such persons to be sworn and to answer questions. As the Court of Appeal pointed out in Murray, ‘the abrogation of the privilege against self incrimination, and the restrictive secrecy regime that surrounds the making of a coercive powers order and examinations under the Act, highlights the importance that the Act attaches to the obtaining of evidence and intelligence about organised crime offences.’[22]
[22]See [19] above.
The Acting Chief Examiner was understandably of the view that you may be able to provide evidence of value in an examination. I am satisfied that you knew full well that there was information of use that you could provide, but you chose not to do so, in spite of the many warnings you were given, the many opportunities you had to reflect on what you were doing, and the clear knowledge you had of the consequences that would follow. I am satisfied that you had no real reason for your failure to cooperate beyond a reluctance to assist the prosecution, and in particular I am satisfied that fear had no part to play in your refusal.
In the circumstances, Mr Smallwood was right to concede, as he did, that your offending was serious, and that your contempt was contumacious.
Personal background
Your personal background was set out by Mr Smallwood in the outline of submissions, and dealt with briefly during oral argument. You are 18 years old, as you were at the time of the offending. You were born in Australia to [redacted] parents. You are the [redacted]. You have a positive relationship with your family. Your father is a [redacted], and your mother a [redacted]. You were educated at [redacted] and then [redacted] where you completed [redacted], having commenced the Victorian Certificate of Education and Vocational Education and Training. You focused on subjects involving building and construction and had a particular interest in carpentry. In [redacted], you enrolled in, but did not complete, a plumbing course at [redacted]. You have apparently since expressed an interest in undertaking a [redacted] course at [redacted], but you have not done so, and I was not told of any employment in which you have engaged.
Prior convictions
You received the youth attendance order I have already referred to for serious offending including armed robbery. Prior to that, you had some minor findings of guilt in the Children’s Court. These matters are all strictly prior convictions for the purposes of the offending that now brings you before this Court. However, as Mr Imrie pointed out in his outline, the authorities dictate that the only relevant antecedents for this offending are those for contempt or for conduct resembling that. You have none of these, so I do not take your prior convictions into account, save for the fact, as already noted, that the fact that your offending here occurred during the period of a youth attendance order is an aggravating feature.
Your youth
I take into account in sentencing you that you were only 18 years old at the time of your offending, and are still 18. When assessing the importance of general deterrence in this case, I take into account that the decision you made not to cooperate with the Chief Examiner in this case, although on the face of it a considered one made with full knowledge of the consequences, was nonetheless a decision made by a young person. I reduce the extent to which general deterrence would impact on your sentence, although it remains an important sentencing consideration, as do specific deterrence, just punishment and denunciation. Because of your age, rehabilitation is also a very important consideration.
Plea of guilty
I take into account in your favour the fact that you pleaded guilty to this offence. You are entitled to a reduction in sentence for your plea due to the utilitarian benefit that flows from it, but I note that the plea is not indicative of remorse, and, indeed, there is no suggestion that you are remorseful or that you feel any regret for your conduct that has brought you before this Court.
Current sentencing practices
I also take into account current sentencing practices in respect of this offence. As I understand it, there is no guidance as to those practices where young offenders are concerned. Current sentencing practices, as I understand them to be, would indicate the almost invariable sentence for this form of contempt is imprisonment.
Pre-sentence report
Following the plea hearing on 20 August 2018, in order to establish your suitability for a youth justice centre order, I requested a pre-sentence report under s 8A of the Sentencing Act 1991. A report dated 29 August 2018 from [redacted], a youth justice case manager at the Department of Justice and Regulation,[23] has been provided to the Court. [Redacted] assessed your suitability for a youth justice centre order based on a consideration of the two matters set out in s 32(1) of Sentencing Act 1991. He concluded on both scores that you are suitable for a youth justice centre order.
[23]Exhibit G.
Pre-sentence detention
At the time of the plea hearing, you were on remand for other offending, as mentioned earlier. You had previously been on bail in respect of this contempt matter, and on the application of Mr Smallwood, that bail was revoked on 20 August 2018. As a result, since that time, you have been held in custody on this matter, as well as on the other matters. Mr Smallwood has asked me to make a declaration under s 35 of the Sentencing Act1991 in respect of the 11 days, up to and including 30 August 2018, during which you have been held in custody in respect of the contempt. I will do so.
Section 6AAA declaration
An issue has arisen as to whether I should make a declaration under s 6AAA of the Sentencing Act 1991. Some judges sentencing offenders for contempt following pleas of guilty have made such declarations. Others have not. Mr Smallwood noted that there might be sound policy reasons for making a declaration under the provision, but he did not press for me to do so, and submitted that I would not fall into error if I did not. Mr Imrie submitted that although the better view of the law was that s 6AAA does not apply directly to a sentence for contempt, it is a desirable practice to make a declaration. I do not see why a declaration should not be made under s 6AAA, and I will make one.
Conclusion
For the reasons already mentioned in this sentence, your offence of contempt of the Chief Examiner is a serious one. The Acting Chief Examiner was seeking to use the coercive powers that the legislature had given her to investigate serious organised crime offences. She understandably was of the view that you may be able to assist in those enquiries. You well understood the importance of what you were to be asked. You knew that you were required by law to be sworn and to answer questions. You also knew the implications of a refusal to cooperate. Your repeated refusal to be sworn or to make an affirmation was a calculated and deliberate contempt of the Chief Examiner and a clear sign of your lack of respect for the process.
Even taking into account your youth, lack of relevant prior convictions, and the other matters put on your behalf, the only sentence that would properly reflect and pay sufficient regard to the various purposes for which sentence should be passed upon you is a custodial sentence of some form.
In this case, as I said, I have received a pre-sentence report under s 32 of the Sentencing Act 1991. On the basis of that report and the overall circumstances of this case, having determined that a sentence involving confinement is justified and, indeed, necessary, I believe that there are reasonable prospects for rehabilitation in your case, and you are likely to be subject to undesirable influences in adult prison. Having regard to the nature of your offence and your age, character and past history, as well as the submissions made on your behalf and those put on behalf of the applicant, I am satisfied that the appropriate disposition is a period of detention in a youth justice centre.
Max Ford, for contempt of the Chief Examiner, you are sentenced to a period of five months’ detention in a youth justice centre.
I make a declaration that the period of 11 days from 20 August 2018 to 30 August 2018 is a period of detention that must be reckoned as already having been served under this sentence.
I state pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty in this case, I would have sentenced you to be detained in a youth justice centre for a period of seven months.
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