R v Ford (a pseudonym)
[2018] VSC 491
•20 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 RULING: | 20 August 2018 |
CASE MAY BE CITED AS: | R v Ford (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 491 |
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CRIMINAL LAW – Contempt of the Chief Examiner – Sentencing – Whether Court has power to make youth justice centre order in sentencing offender for contempt – Where offender pleaded guilty – Where offender aged 18 and has limited prior convictions – Rich v Attorney-General (Vic) (1999) 103 A Crim R 261, DPP v Johnson (2002) 6 VR 235 and R v The Herald and Weekly Times Pty Ltd [2008] VSC 251 discussed – Major Crime (Investigative Powers) Act 2004 s 49(1) – Sentencing Act 1991 s 32.
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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:
On 20 August 2018, the respondent came before me charged with contempt of the Chief Examiner pursuant to s 49(1) of the Major Crime (Investigative Powers) Act 2004.[1]He pleaded guilty through his counsel.
[1]Section 49(10) relevantly states: ‘A contempt of the Chief Examiner is to be dealt with by the Supreme Court as if – (a) the contempt were a contempt of an inferior court.’
A preliminary issue was raised by counsel on both sides as to the applicability of s 32 of the Sentencing Act 1991 (‘the Act’) to the sentencing of an offender for contempt. That provision concerns youth justice centre and youth residential centre orders. Youth justice centre orders are orders for the detention of young offenders[2] in certain circumstances. At issue was whether the Court in this case has the power, should it see fit to exercise the power, to order a period of detention in a youth justice centre. It was submitted by counsel on both sides that it would be permissible. Furthermore, both counsel contended that I should, indeed, request a pre-sentence report under s 32 of the Act — a necessary pre-condition for the making of an order under s 32.
[2]‘Young offender’ is defined in s 3 of the Act as an offender who at the time of being sentenced is under the age of 21 years. The respondent is 18 years old.
Counsel were agreed that submissions should be directed to the preliminary issue and that a ruling should be made on that matter before the plea-proper proceeded. I agreed to that course, having been told that counsel did not require a detailed ruling. I then heard submissions from both sides, before briefly ruling that a youth justice centre order would be legally open.[3] I indicated that I would set out my reasons for the ruling in the sentence that I passed in due course. On reflection, I consider it appropriate now to provide my reasons in a separate ruling. These are those reasons.
[3]Transcript of Plea Hearing (Supreme Court of Victoria, Tinney J, 20 August 2018) 39 (‘Plea transcript’).
I note that in light of the unanimity of views about this matter at the Bar table, and the circumstances in which the ruling was given, these reasons do not purport to be a comprehensive analysis of the question whether s 32 of the Act applies to the sentencing of an offender for contempt. Furthermore, I have not gone beyond the authorities cited by counsel during the hearing.
The authorities to which my attention was drawn suggest that while some aspects of the Act have application to the sentencing of persons for contempt, some may not. This is due to the nature of proceedings for contempt and the way in which this Court has punished contempt in the past.
In Rich v Attorney-General (Vic),[4] the Court of Appeal heard appeals both against the finding by Byrne J that the appellant was guilty of contempt of court and against the period of imprisonment imposed. In the sentence aspect of the appeal, Winneke P, with whom Callaway and Buchanan JJA agreed, considered the trial judge to have erred in failing to have regard to s 15 of the Act in passing sentence. This section concerns the order in which sentences are to be served.
[4](1999) 103 A Crim R 261.
In his consideration of the matter, Winneke P made some wider observations about the approach of the trial judge. He said:
His Honour appears to have taken the view that the provisions of the Sentencing Act have no part to play in the exercise of the summary jurisdiction by means of which contempts are traditionally punished. That may be the reason why he gave no consideration to the provisions of ss 11 and 15 of the Sentencing Act. For my own part, I cannot see why the fact that the court is exercising a summary jurisdiction under O 75 of the General Rules of Procedure in Civil Proceedings should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence. I can understand why the nature of a criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly would this be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders might be seen to be inconsistent with the court’s power to commit for contempt of court. Because the power to commit for contempt has always been regarded as a power to commit for a ‘fixed term’, it may well be that the legislative discretion given to courts to suspend sentences and fix ‘minimum terms’ are also inconsistent with the exercise of the power … Considerations of this kind, no doubt, influenced Young CJ in Hinch v A-G at 731, to say:
‘But general provisions relating to sentencing should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court …’[5]
[5]Ibid 281 [46].
The mention by Winneke P of juvenile detention orders as being ‘perhaps’ inconsistent with the Court’s power to commit for contempt of court is a matter which, according to counsel for the applicant, had ‘caused some disquiet in this case’.[6] I note, however, that this was far from a concluded view expressed by Winneke P. Furthermore, of course, it was obiter.
[6]Plea transcript 20.
I now turn to deal briefly with the other decisions drawn to my attention by counsel.
In DPP v Johnson,[7] Osborn J considered the question whether ss 11–14 of the Act relating to the setting of non-parole periods applied in relation to punishment for contempt. He held that the provisions did apply, as their effect would not be to remove or materially fetter the common law power to summarily impose terms of imprisonment for contempt. He noted that there were strong policy considerations supporting his conclusion which, as he said, were summarised by the New South Wales Court of Appeal in Attorney-General (NSW) v Whiley[8] as follows:
First, it would provide consistency in sentencing, especially where the contempt could also amount to an offence under the Crimes Act; secondly, it is to the benefit of the opponent that, if sentenced to imprisonment, he is given the opportunity to have parole and to serve part of his sentence under supervision in the community; and thirdly, the Sentencing Act provides for a more flexible sentencing approach so that the sentence can be structured to take into account more readily the interests of both the community and the offender for supervision upon release from custody.[9]
[7](2002) 6 VR 235 (‘Johnson’).
[8](1993) 31 NSWLR 314.
[9]Ibid 320–1 (Clarke, Meagher and Handley JJA).
In respect of the first policy consideration mentioned above, Mr Imrie for the applicant made the point that in the case before the Court, the refusal by the respondent to be sworn could have been dealt with by a charge under s 36(4) of the Major Crime (Investigative Powers) Act 2004, in which case a period of detention in a youth justice centre would undeniably have been open. It would be a strange thing were that not also the case in respect of proceedings for contempt taken instead for the very same conduct.
Osborn J went on to observe:
The critical consideration, however, is as I have stated one of statutory construction, namely whether the provisions of ss 11–14 relating to non-parole periods unacceptably fetter the common law power to imprison for contempt. In my opinion these provisions are not ‘inconsistent with the exercise of the power’ (to use the words of Winneke P in Rich) because s 11 necessarily contemplates that the court may regard a contempt as falling within a special class of offence requiring a contemnor to be dealt with in accordance with the practice of the common law.[10]
[10]DPP v Johnson (2002) 6 VR 235, 237 [7].
His Honour also made mention of the decision of Gillard J in National Australia Bank Ltd v Juric(No 3),[11] in which his Honour held that the provisions of the Act relating to suspended sentences applied to contempt proceedings.
[11][2002] VSC 86.
In R v The Herald and Weekly Times Pty Ltd,[12] Kyrou J considered the extent to which the Sentencing Act applies to punishment for contempt of court. He accepted that the Act could be relevant to sentencing in relation to contempt proceedings but that not all of its provisions were necessarily relevant. Having made mention of McKinnon v Adams (No 2)[13] — in which Bongiorno J had held that it was inappropriate to apply Division 4 of Part 3 of the Act, which deals with fines, to fines for contempt — he turned to the decision of the Court of Appeal in Varnavides v Victorian Civil and Administrative Tribunal,[14] in which the Court made the following comments:
Because contempt is a distinctive offence attracting remedies which are sui generis, the Sentencing Act 1991 does not apply in cases of punishment for contempt in the same way as it applies to sentencing for other criminal offences …
Nevertheless, contempt of court is a serious offence and should be approached, as far as possible, in a way which is consistent with that adopted when dealing with criminal conduct generally. There is no reason to suppose that the provisions of the Sentencing Act were intended to fetter the unlimited jurisdiction of the Supreme Court to punish for contempt of court. But, obviously, the Sentencing Act deals with a range of matters of principle or practical importance to the imposition and operation of sentences – matters, including, for example, the very practical question of the order in which sentences are to be served – and, as a matter of commonsense, a Supreme Court judge would have regard to them when dealing with a case of contempt.[15]
[12][2008] VSC 251.
[13][2003] VSC 502.
[14](2005) 12 VR 1.
[15]Ibid 6 [17]–[18] (Vincent and Nettle JJA and Harper AJA).
Kyrou J decided that he could have regard to the matters referred to in ss 7 and 8 of the Act and that he could exercise his discretion to sentence in the manner authorised by s 7(1)(f) of the Act, namely to order a fine with or without conviction.
Submissions
Mr Imrie for the applicant noted that there was no authority directly on point in support of the availability of a youth justice centre order in punishment for contempt. Relying on the cases referred to above,[16] and the principles set out in those cases, he submitted that the application of ss 32–35 to contempt proceedings ‘would not be inconsistent with the common law powers to punish for contempt’[17]. He further submitted, by reference to the comments of Osborn J in Johnson set out above, that because I would be able to exercise a discretion as to whether it was appropriate to order a period of detention in a youth justice centre as opposed to imprisonment, it would not impermissibly fetter the powers of this Court to punish for contempt. He also submitted that if the youth justice centre option was available, it would further the sentencing objectives, achieve the purpose of consistency in sentencing, and provide ‘for the maximum amount of flexibility in pursuit of the sentencing objectives.’[18]
[16]Counsel also mentioned, without discussing in any detail, the decision of the Supreme Court of Western Australia in R v Eades (No 2) (1991) 6 WAR 532.
[17]Plea transcript 23
[18]Ibid 29.
Mr Smallwood for the respondent submitted that the test ultimately was whether the provisions of the Act relating to youth justice centre orders would or would not fetter the Court’s unlimited jurisdiction to deal with contempt. He agreed with the applicant’s submissions that they would not.
Discussion
Whether s 32 of the Act applies to the sentencing of an offender for contempt is ultimately a question of statutory construction. In my opinion, there is nothing in the text or structure of pt 3 div 2 subdiv (4) of the Act, which deals with the imposition of youth justice centre orders and youth residential centre orders, that fetters or is otherwise inconsistent with the common law power to punish for contempt. I do not consider any of the authorities cited by counsel, to the extent that they offer any assistance, to be inconsistent with this conclusion.
The respondent in the present case is of such an age that it would be open to me to impose a youth justice centre order. Were I to receive a pre-sentence report and to be satisfied of the matters contained in s 32(1)(a) or (b) of the Act, it would remain a matter for me in the exercise of my discretion whether I would make such an order.
The respondent is 18 years old and has limited prior convictions. His youthfulness is a very important consideration where sentencing is concerned, and his rehabilitation is of paramount importance. The prospect of his incarceration in adult prison is to be avoided if at all possible. Long before the Act came into effect, there has been a modified form of custodial sentence, now known as a youth justice centre order (previously a youth training centre order) available in certain circumstances for young offenders such as him.
When the Major Crimes (Investigative Powers) Act 2004 came into effect, introducing, as it did, strong coercive powers to compel people as young as 16 to give evidence before the Chief Examiner, and therefore laying them open to the prospect of being charged with contempt should they refuse to be sworn or to answer questions, I cannot imagine that the legislature envisaged that a judge dealing with a child or young person who ended up in contempt of the Chief Examiner would not have available to him or her a central aspect of the normal sentencing armoury, namely the power, on determining that a custodial sentence was appropriate for a child or young offender, to order that it occur by way of detention in a youth justice centre rather than by normal imprisonment.
In my view, far from fettering the power of this Court to punish for contempt, the availability of a youth justice centre order would enhance that power.
Conclusion
In the circumstances of this case, I consider that this Court has the power to make a youth justice centre order in dealing with a young offender for contempt of the Chief Examiner.
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