| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0216
| THE QUEEN (on the application of the Chief Examiner) | Applicant |
| v | |
| AHMAD MICHAEL (a pseudonym) | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 May 2020 |
DATE OF SENTENCE: | 26 June 2020 |
CASE MAY BE CITED AS: | R v Michael (a pseudonym) (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 391 |
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CONTEMPT – Sentence – Examination under Major Crime (Investigative Powers) Act 2004 (Vic) – Contempt of the Chief Examiner – Refusal to answer questions put by the Chief Examiner – Reasonable excuse for refusing to answer questions not found – Apologised for refusal – Sentence of five months’ imprisonment – Two months be served cumulatively on the sentence presently undergoing.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F. Holmes | Office of the Chief Examiner |
| For the Respondent | Mr S. Moglia | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
On 8 April 2020, this Court found the respondent guilty of contempt pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). This finding followed a one-day trial on 19 December 2019, where the respondent contested the allegation of contempt. He conceded he had refused to answer questions asked by the Chief Examiner’s delegate (‘the Examiner’) on [redacted], but maintained he had a reasonable excuse for doing so.
These reasons concern the penalty to be imposed following the respondent being found to have committed the offence of contempt.
Maximum penalty
Section 49(1) of the Act creates the offence of contempt of the Chief Examiner. However, the Act does not specify any particular penalty or maximum penalty for such offending.
While noting that the Court’s sentencing power is at large, both parties contend that the five year maximum for like breaches under the Act[1] provides a useful comparator. Croucher J adopted this approach in R v QF,[2] and it has been similarly taken in other cases. I have taken a similar approach in R vBrigham[3] and R vMiles[4] and agree that this is the approach to be taken in the present case.
[1]See Major Crimes (Investigative Powers) Act 2004 s 36.
[2][2014] VSC 81 at [16].
[3][2018] VSC 284.
[4][2018] VSC 669.
Both parties accept that the respondent’s offending warrants an immediate custodial sentence.
Background and circumstances of the offending
I have already detailed the background and circumstances of this case in R v Michael,[5] and will therefore only include a brief summary in these reasons.
[5][2020] VSC 162R.
The Chief Examiner issued three custody orders pursuant to s 18 of the Act requiring the respondent to attend to give evidence in relation to a series of armed robberies and attempted armed robberies. On [redacted], [redacted] and [redacted], the respondent was brought from prison to the Office of the Chief Examiner for the purpose of an examination. He was sworn on all three occasions.
On [redacted], the…
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- AGLC
- R v Michael (a pseudonym) (No 2) [2020] VSC 391
- Case
- [2020] VSC 391
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether Michael's refusal to answer questions constituted contempt and, if so, what the appropriate sentence should be. The court also needed to consider whether Michael's apology for his conduct should be taken into account when determining the sentence.
The court found that Michael's refusal to answer questions did indeed amount to contempt of the Chief Examiner. However, the court acknowledged Michael's apology and his explanation that he had not found a reasonable excuse for his refusal. The court weighed these factors in determining the sentence, ultimately deciding on a sentence of five months' imprisonment. Of this sentence, two months were to be served cumulatively on the sentence Michael was already undergoing. This decision reflected the court's consideration of both the gravity of the contempt and the mitigating circumstances presented by Michael's apology and explanation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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