R v Ford (a pseudonym) - [2018] VSC 494

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…

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 Ford (a pseudonym)

Details

AGLC: R v Ford (a pseudonym) [2018] VSC 494
Case: [2018] VSC 494
Decision Date: 31 August 2018

CaseChat Overview and Summary

The court was presented with the case of R v Ford, where the defendant, Ford, faced charges related to contempt of the Chief Examiner. The dispute involved Ford’s refusal to take an oath or make an affirmation during an examination into a series of crimes. The matter was heard in the relevant court which handled criminal cases. The central legal issues the court needed to decide revolved around the appropriate sentence for Ford, given his plea of guilty to the contempt charge and his refusal to participate in the examination process. The court had to consider the nature of the contempt, which was deemed contumacious, and the specific circumstances surrounding Ford’s conduct.

In reaching its decision, the court considered various factors, including Ford’s age, the lack of relevant prior convictions, and the seriousness of the contempt charge. The court recognised that Ford’s conduct was contumacious, and that it interfered with the judicial process. However, the court also acknowledged Ford's youthful status and the absence of a criminal history. The sentencing was influenced by the need to deter Ford and others from similar conduct while also providing an opportunity for rehabilitation. The court concluded that a sentence of five months' detention in a youth justice centre was appropriate, taking into account these factors and the provisions of the Major Crime (Investigative Powers) Act 2004.

The court's reasoning and decision were grounded in the statutory provisions of the Major Crime (Investigative Powers) Act 2004, sections 36 and 49, which provided the legal framework for sentencing in this context. The court found that the sentence of five months’ detention was a balanced approach that addressed the need for punishment and deterrence while also considering Ford's age and the potential for rehabilitation. The court’s final order was that Ford would serve a sentence of five months’ detention in a youth justice centre, reflecting the seriousness of the contempt charge and the court's aim to address the underlying issues through appropriate sentencing.

Orders