R v Ford (a pseudonym) - [2018] VSC 491

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.…

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 491
Case: [2018] VSC 491
Decision Date: 20 August 2018

CaseChat Overview and Summary

The case of R v Ford involved an individual who was charged with contempt of the Chief Examiner. The matter was heard in the County Court of Victoria. The defendant, who was 18 years old at the time of the offence, had a limited criminal history and pleaded guilty to the charge. The central issue before the court was whether it had the authority to impose a youth justice centre order on the defendant as part of the sentencing for contempt. The court needed to consider the relevant statutory provisions and existing case law, particularly the decisions in Rich v Attorney-General (Vic), DPP v Johnson, and R v The Herald and Weekly Times Pty Ltd.

The court examined the Major Crime (Investigative Powers) Act 2004, specifically section 49(1), and the Sentencing Act 1991, particularly section 32. The decision in Rich v Attorney-General (Vic) highlighted the principle that a youth justice centre order was an appropriate form of sentencing for young offenders. DPP v Johnson and R v The Herald and Weekly Times Pty Ltd provided further guidance on the court’s discretion in sentencing. The court concluded that, given the defendant's age and limited criminal history, a youth justice centre order would be a suitable and proportionate sentence for the contempt charge. The court's reasoning was based on the need to balance the seriousness of the offence with the rehabilitative potential of a youth justice centre order.

The County Court of Victoria determined that it had the power to make a youth justice centre order under the circumstances. The court imposed a sentence that included a youth justice centre order, reflecting its consideration of the defendant's age and the nature of the offence. This decision provided clarity on the sentencing options available to the court in cases involving contempt of the Chief Examiner, particularly when the offender is a young person with limited prior convictions.

Orders