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R v Hopkins (a pseudonym)

R v Hopkins (a pseudonym)

Case [2018] VSC 756 11 December 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0133

THE QUEEN (on the application of the Chief Examiner)	Applicant
v
HENRY HOPKINS (a pseudonym)	Respondent

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATES OF HEARING:	1 and 29 October 2018
DATE OF SENTENCE:	11 December 2018
CASE MAY BE CITED AS:	R v Hopkins (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VSC 756

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CRIMINAL LAW – Sentence – Contempt of the Chief Examiner – Refusal to answer questions when directed to do so – Plea of guilty – Child offender – Whether the Children, Youth and Families Act 2005 applies directly or by way of analogy – Primacy of rehabilitation – Less weight on general deterrence – Sentence of two months’ detention in youth justice centre wholly suspended for three months – Major Crime (Investigative Powers) Act 2004, ss 37, 49.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Imrie (1 October 2018) Mr H Myers (29 October 2018)	Office of the Chief Examiner
For the Respondent	Mr A Sim	Victoria Legal Aid

HER HONOUR:

Henry Hopkins, 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 Damian P Hannan, Examiner, pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’).

In short, the charge relates to your examination before the Chief Examiner on 15 May 2018 in which you were directed to answer two questions. You refused to do so.

The Act is silent as to penalty for contempt of the Chief Examiner under s49(1). The penalty is at large. The Act provides a maximum penalty of five years imprisonment for refusing or failing to answer a question that a person is required to answer by the Chief Examiner under s37(3) of the Act. This maximum penalty is a useful comparator for present sentencing purposes.[1]
[1]This Court has on numerous occasions held that the maximum penalty of five years imprisonment for refusing or failing to take an oath or to make an affirmation under s36(3) of the Act is a useful comparator for sentencing of contempt under s49(1) of the Act by so refusing or failing. See, for example, R v QF [2014] VSC 81; R v Murray [2018] VSC 133; R v Brigham [2018] VSC 284 (‘Brigham’) and R v Ford (a pseudonym) [2018] VSC 494 (‘Ford’). The situations are obviously analogous.

Circumstances of Offending

On 19 October 2017, Justice Coghlan made a coercive powers order in relation to [redacted].

On 23 March 2018, the Chief Examiner issued a witness summons pursuant to s15 of the Act requiring you to attend before the Chief Examiner on 10 April 2018 and give evidence with respect to [redacted] that fell within the terms of the coercive powers order including, expressly, [redacted].

You had previously [redacted].

On 10 April 2018, you attended before the Chief Examiner. You…

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 Hopkins (a pseudonym)

Details

AGLC: R v Hopkins (a pseudonym) [2018] VSC 756
Case: [2018] VSC 756
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of R v Hopkins involved a defendant who pleaded guilty to contempt of the Chief Examiner by refusing to answer questions when directed to do so. The matter was heard in the relevant court where the legal issues centred on the appropriate sentence to impose on a child offender under the Children, Youth and Families Act 2005 and whether that Act applied directly or by way of analogy. The court also considered the principles of sentencing, particularly the primacy of rehabilitation and the lesser importance of general deterrence when dealing with juvenile offenders.

The court found that the Act applied to the defendant by way of analogy, emphasising the importance of rehabilitation over general deterrence in sentencing juvenile offenders. It was noted that the defendant was a young person, which influenced the court's approach to sentencing. The court balanced the need for appropriate punishment with the overarching goal of rehabilitating the offender. It concluded that a sentence of two months' detention in a youth justice centre, wholly suspended for three months, was appropriate. This sentence reflected both the seriousness of the offence and the need to support the defendant's rehabilitation.

The court's decision was influenced by statutory provisions under the Major Crime (Investigative Powers) Act 2004, sections 37 and 49, which guided the court in imposing a sentence that was both punitive and rehabilitative. The final orders of the court included the two-month detention sentence, suspended for three months, and mandated that the defendant adhere to specific conditions during the suspension period.

Orders