R v Hopkins (a pseudonym)
[2018] VSC 756
•11 December 2018
| 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 were represented by counsel and your mother was present during the examination. Prior to you being asked any questions, the Chief Examiner, in compliance with s31 of the Act, informed you of various matters, including that it is an offence to, without reasonable excuse, refuse to answer a question when required to do so.
During the questioning that day, [redacted]. But while you indicated that you knew the person who [redacted], you stated that you would not tell the Chief Examiner [redacted].
The examination was adjourned to 15 May 2018. The Chief Examiner warned you that on resumption of the examination you would again be asked to [redacted], and that you would be required to answer that question.
On 15 May 2018, you were again represented by counsel but your mother was not present. You declined the arrangements offered to have a parent or independent third person present. You stated you had no concerns in relation to your safety. The Chief Examiner again informed you that it is offence, without reasonable excuse, to refuse to answer a question when required to do so. She stated that if you refused to answer a question, you could be taken immediately to this Court to be dealt with for contempt.
When directed to [redacted], you repeatedly said that you were not going to answer because you were not a ‘snitch’ or a ‘lagger’, and that there was no point in the Chief Examiner arguing with you. When further directed to [redacted], you refused to do so and said that if that person found out you had said something to the Chief Examiner, he would seek to cause harm to your family.
Shortly thereafter, the Chief Examiner formally asked you your excuse for not answering his question as to [redacted]. You replied, ‘I’m not a lagger. Like, I don’t want to put my family in danger. Like, you never know if they’re gunna find out it’s me they’re gunna be looking for me, they might go to my house, they might go to whatever they want to go. That’s – that’s my reason’.
When then asked if you had received a threat, or told anybody about your presence before the Chief Examiner that day, you replied in the negative.
The Chief Examiner next formally asked you your reason for failing to [redacted]. You replied, ‘[t]he same reason I told you. … [t]he same reason I said before’. That is, you were not a ‘snitch’ or a ‘lagger’.
Legal Proceedings
Later the same day—15 May 2018—you were brought before this Court by way of a written certificate of charge. A timetable for the filing of medical reports concerning your psychiatric functioning was established. You were admitted to bail.
The neuropsychological report of [redacted]subsequently filed noted that you have a mild intellectual impairment and struggle to understand complex language.[2] However, [redacted] concluded that you had a basic understanding of the requirement to answer the questions of the Chief Examiner and an appreciation of the consequences of a failure to do so. Nonetheless, it was her opinion that your intellectual impairment placed you at risk of reaching rigid solutions without the ability to consider a range of options and the full consequences of your actions.
[2]That report references other reports, namely [redacted]. I have received and considered the content of these two reports, as well as that of [redacted].
On 3 August 2018, through your counsel, you indicated an intention to plead guilty to the charge. The proceeding was listed for plea on 1 October 2018 and procedural orders were made for the filing of further materials. Following the hearing of your plea on 1 October 2018, a pre-sentence report was ordered and provided on 29 October 2018. Further submissions were heard on that day.
Sentencing Principles
Contempt of the Chief Examiner is a serious offence. As the Court of Appeal has observed:
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.[3]
[3]Murray v The Chief Examiner [2018] VSCA 144, 78,79 (Whelan, Beach, Niall JJA).
The fact that you were [redacted] years old when you committed the contempt and are now still that age does not render that statement of high principle inapposite.
However, the fact that you are legally a child may ameliorate the further observation of the Court of Appeal, when considering the range of sentences imposed by this Court for contravention of s 49 of the Act, that:
Those cases do demonstrate that a contravention will usually, if not invariably, call for a term of immediate imprisonment.[4]
[4]Ibid, 81.
You are the first child contemnor to be sentenced by this Court and it is necessary to consider the particular sentencing issues presented by your minority.[5]
[5]The Queen v Eades (No 2) (1991) 6 WAR 532 concerned a child convicted of contempt of court in the Supreme Court of Western Australia. The decision concerned various issues of statutory construction of the relevant legislation and is of not of assistance with respect to the present sentencing exercise.
It is common ground between the parties that the Children, Youth and Families Act2005 (Vic)(‘CYF Act’) does not apply to this proceeding. A charge of contempt brought pursuant to s49 of the Act falls within the exclusive jurisdiction of this Court and is to be dealt with as though it were a contempt of an inferior court.[6]
[6]The Act, s49(10)(a).
Consequently, the provisions of the CYF Act have no direct application to punishment of such a contempt by a child. First, the Children’s Court has no jurisdiction to hear such a charge.[7] Second, contempt is not an indictable offence, it is sui generis.[8] It follows that the discretion conferred on this Court by s586 of the CYF Act to make sentencing orders under the CYF Act is not enlivened.
[7]CYF Act, s516.
[8]See Allen v R (2013) 36 VR 565, 54 (Priest JA, with whom Maxwell P and Weinberg JA agreed).
Rather, Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)(‘Rules’) governs punishment for contempt.
However, in my view, the principles of sentencing child offenders enunciated in the CYF Act remain relevant. There are sound reasons of policy for ensuring that, so far as possible, the sentencing of a child for contempt is approached in a manner consistent with that in respect of a child facing an ordinary criminal offence.
First, authority establishes that contempt of court should generally, so far as is possible, be approached in a manner consistent with that adopted with respect to criminal conduct.[9] Accordingly, while the Sentencing Act 1991 (Vic) does not apply directly to punishment of contempt in the same way as it does ordinary criminal offences,[10] it does apply indirectly, by analogy.[11]
[9]Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1, 18 (‘Varvanides’)
[10]Grocon v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134, 80-84 (Cavanough J).
[11]Ibid, 78.
Adherence to these principles supports both consistency in sentencing—particularly where the contempt also amounts to an ordinary criminal offence, as it does here[12]— and flexibility in achieving sentencing outcomes. It also gives effect to the policy objectives of the modern approach to sentencing, as expressed in the legislative provisions.[13]
[12]DPP v Johnson (2002) 6 VR 235, 6, citing Attorney-General (NSW) v Whiley (1993) 31 NSWLE 314, 320-1 (Osborn J) (‘Johnson’).
[13]National Australia Bank v Juric (No 3) [2002] VSC 86, 69.
Second, the particular policy objectives attaching to children are, logically, no less relevant merely because the offence under consideration is one of contempt. By way of example, Tinney J of this Court recently adopted the standard sentencing approach with respect to youthful offenders, giving paramount importance to issues of rehabilitation, to an 18 year old who had pleaded guilty to an offence of contempt of the Chief Examiner pursuant to s49 of the Act.[14]
[14]Ford.
The sentencing objectives with respect to minors find expression in s 362 of the CYF Act:
(a)the need to strengthen and preserve the relationship between the child and the child’s family; and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
Third, such an approach allows this Court to give due and principled weight to the immaturity of a child as relevant to the contemptuous behaviour without the sentencing provisions of the CYF Act fettering or inhibiting its unlimited jurisdiction to punish for contempt.[15]
[15]Rich v Attorney-General (1999) 103 A Crim R 261, 281; Varnavides, 18; Johnson, 4-5.
In this regard I note that this approach allows for a role for general deterrence to feature as a consideration in the sentencing of a child contemnor, unlike in the sentencing of a child for an ordinary criminal offence. So much was conceded by counsel for the respondent. But, as was conceded by counsel for the applicant, general deterrence, while relevant, assumes a ‘significantly diminished role’ as compared with the respondent’s youth and other personal characteristics.
In my view, it will not be usual or invariable that a s49 contempt of the Chief Examiner offence by a child will call for a term of immediate imprisonment. But neither will it be usual or invariable that it will not. Each case will turn its own facts and, in particular, on the interplay between the well-established sentencing factors for contempt and the principled approach to sentencing of juveniles with the circumstances of the individual case.
Personal Circumstances
It is necessary to say something about your personal circumstances.
You were born on [redacted], and, until the separation of your parents when you were aged [redacted], you lived in the family home along with your [redacted]. Thereafter you lived with your mother except for a short, unsuccessful period spent with your father. You have never lived independently.
You displayed learning and behavioural problems in primary school. Classroom arrangements tailored to your needs were provided. You progressed to a secondary school for a time before being transferred to another secondary school that provided a teaching environment for persons with an intellectual disability. However, you were only there for a matter of weeks before being expelled.
As a result, you have received no education since Year 8.
Since then your work history has been patchy. For a few months in 2017 you worked building roads under a funded program for what your mother termed ‘troubled kids’. You have done sporadic work for your father as [redacted]. And you have obtained a ‘white card’, which allows you to work on building sites. You report as occasionally getting work as a ‘spotter’.
As already stated, you have been diagnosed as having a mild intellectual disability and your behavioural deregulation is marked by a lack of control and aggressive responses. This has been the case since you were a young child, and it subsists.
Indeed, [redacted] noted your aggressive behaviour in the testing procedure she administered. You left the room abruptly on three occasions and you also terminated the assessment prematurely.
The pre-sentence report also notes your impulsive behaviour and lack of consequential thinking. The pre-sentence report further notes your lack of contrition for your contempt and your statement that if you had your time again you would not ‘talk’, even if it meant you being ‘locked up’. That report states that your mother confirms you as having being diagnosed with [redacted] which can be effectively managed with medication. However, you completely ceased taking this medication in December 2016.
You faced a number of charges in the criminal division of the Children’s Court in 2016 and 2017, including for [redacted], for which you received, without conviction, a Youth Supervision Order [redacted]. There has been some subsequent offending in 2018.
Sentencing Factors
The sentencing factors for contempt summarised by Dunford J in Wood v Staunton (No 5)[16] have been consistently applied by this Court with respect to contempt cases under the Act.[17] I will address each applicable matter in turn.
[16] (1996) 86 A crim R 183, 185.
[17]Murray, 62; Brigham, 24; Ford, 30
The seriousness of the contempt and its context of serious crime
The seriousness of a contempt is to be assessed by regard to the statutory context in which it is committed. The Act is designed to assist police in breaking the ‘code of silence’ that often thwarts the investigation of organised crime.[18] As John Dixon J has said:
The key purpose of the Act is to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences by the Chief Examiner. Information obtained at such an examination may assist in the investigation of organised crime offences and the successful prosecution of those who commit them. The extensive confidentiality provisions in the Act are intended to minimise interference with the civil liberties of witnesses and protect the confidentiality of participants in compulsory processes thereby ensuring the safety of those who must submit to examination.[19]
[18] Parliamentary Debates, Legislative Council, 10 November 2004, 1220 (Hon. JM Madden)
[19] The Queen (on the application of the Chief Examiner) v DF (No 2) [2014] VSC 213, 6, citing The Queen v Debono [2013] VSC 413
Your contempt is a serious example of its kind and was committed in the context of serious criminal offending.
The awareness of the contemnor
You made a deliberate choice to commit the contempt and suffer the consequences. This was so even though you were legally represented and had the offer of access to an independent third person. Further, the Chief Examiner – properly in my view – gave you the opportunity to reflect upon your course of action between the first and second days of the examination.
You maintain, as was reported in the pre-sentence report, that you understood the consequences of failing to answer the questions and made a deliberate decision to do so, come what may.
However, your intellectual disability and manifest immaturity does mean that your reasoning processes are compromised and you are somewhat rigid in your thinking. This moderates both the objective gravity of your offending and your moral culpability for it.
The reasons for the contempt
During the examination, you repeatedly stated that you were neither a ‘lagger’ nor a ‘snitch’. During your interview with the Department of Justice and Regulation in preparation for the pre-sentence report, with reference to such conduct, you said ‘that’s not me’.
You further stated that you were worried for yourself and your family, although you could not identify specific safety concerns. Again, during the preparation of the pre-sentence report you said you worried about others finding out and talking behind your back, bashing you, calling you a dog or coming to your house and threatening your family.
The first reason you proffered for your failure to answer the questions is the very mischief at which the Act is directed. Your expressed desire to not ‘lag’ is no justification at all for your behaviour. Your second proffered reason could be mitigatory of your behaviour if your refusal to answer was motivated by a genuine, subjective fear of retribution.[20] While you could not at the time, or at any later time, identify any basis for your fear, I am of the view that your intellectual impairment and rigid thinking processes are relevant to your ability to reason appropriately in this regard.
[20]R v Sherwani [2017] VSC 147, 26-30.
Consequences of the contempt
I accept that you did not personally benefit from your contempt.
However, you refused to [redacted]. [redacted] remains unknown to the Chief Examiner. That is a matter of central importance to his investigation into an organised crime offence.
Your refusal to answer questions when directed to do so is, accordingly, a significant and direct interference in the administration of justice.
Contrition, antecedents, character
You have no remorse for your actions. Indeed, you are not apologetic; you are defiant. You state that if you had to do it again, you still would not answer the questions, even if it meant you would be incarcerated. The contempt is, plainly, contumacious.
You have no relevant antecedents.
There is no evidence before me demonstrative of good character.
Despite the recommendation of the Department of Justice and Regulation in the pre-sentence report that you would benefit from offence-specific counselling to address your impulsive behaviour and lack of consequential thinking, you manifest no interest in accepting that help.
I note your self-assessment to the Department of Justice and Regulation that your chance of further offending is 95%. That is obviously a matter relevant to your prospects for rehabilitation. In an extremely unorthodox development, on 5 December 2018, I received an ‘addendum to pre-sentence report’ (‘Addendum’) from the Department of Justice and Regulation. That Addendum said that your legal representative requested the author to ‘review’ information in the pre-sentence report with respect to this self-assessment. The addendum continues:
To follow up on this request, the writer spoke to HH and his Mother on 27/11/18. During this discussion both indicated that it was their recall of the conversation with the writer in October 2018, that when challenged about his risk of re-offending, HH stated he believed he was 95% sure he would not re-offend. The writer’s recall of this conversation was that HH was not presenting as confident about his capacity to distance himself from offending behaviour, however given HH was also demonstrating difficulty expressing himself when challenged, the writer accepts his and his Mother’s version of this discussion.
I have little regard to this self-serving statement. First, the manner in which it came before me is irregular. Second, you are presently [redacted] for offences alleged to have been committed between [redacted]. That is, two days after the matter was last before me and approximately one month after your self-assessed risk of reoffending. You also are alleged to have committed separate offences on [redacted].
Even if your self-assessment of your risk of reoffending was 5% (as suggested in the Addendum), in the very short time since you made that assessment you are alleged to have reoffended. While those matters are not proven, considering all of the matters before me I am of the view that you are making scant efforts towards living a crime-free life. If you were, you would be minded to participate in counselling to help control your impulsive behaviours.
Deterrence and denunciation
Deterrence and denunciation are, ordinarily, paramount sentencing considerations in matters of contempt. As I have already made plain, the Act is an integral part of law enforcement machinery, designed to aid the investigation of organised crime offences and assist in the successful prosecution of those who commit them, by providing a mechanism aimed at breaking a persistent code of silence. But, that is not done at all costs. The value placed on the safety of citizens subject to the compulsory processes established in the Act is protected by the extensive confidentiality provisions enshrined within it. It is for this reason that an offence against s49 of the Act is serious and the twin sentencing objectives of deterrence and denunciation ‘usually, if not invariably’ mandate an immediately operative sentence of imprisonment.
However, as I have also said, at the age of [redacted], your prospects for rehabilitation – however guarded – must outweigh general deterrence in the balancing of factors relevant to the sentence I must impose upon you. Your level of intellectual functioning also necessarily reduces the importance of general deterrence as a sentencing factor.
Even so, your behaviour and your continuing defiant attitude is denounced by this Court.
Verdins
I accept that a number of limbs of R v Verdins (‘Verdins’)[21] are applicable to you. That is, by reason of your mild intellectual disability and the consequential impairment to your capacity to reason appropriately, your moral culpability for your offending is lessened, and you are not a vehicle for deterrence.
[21]R v Verdins (2007) 16 VR 269.
Sentence
Both your counsel and counsel for the applicant submitted that, in all the circumstances, the appropriate disposition is a custodial sentence, but that it need not be one with immediate operative effect. Taking into account the factors I have discussed, as well as your plea of guilty—which, although is not demonstrative of your remorse, does have utilitarian benefit—and applying, so far as is possible, the principles applicable to the sentencing of minors, the appropriate disposition is a non-immediate custodial sentence.
Henry Hopkins, please stand.
For the offence of contempt of the Chief Examiner I sentence you to a period of two months’ detention in a youth justice centre, wholly suspended for a period of three months on condition that you are of good behaviour for that period.
I state pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have sentenced you to a period of two months’ detention in a youth justice centre.
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