R v Michael (a pseudonym) (No 2) - [2020] VSC 391

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…

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 Michael (a pseudonym) (No 2)

Details

AGLC: R v Michael (a pseudonym) (No 2) [2020] VSC 391
Case: [2020] VSC 391
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case before the court involved the defendant, referred to as Michael, who was facing contempt charges for refusing to answer questions during an examination under the Major Crime (Investigative Powers) Act 2004 (Vic). Michael's actions were deemed contemptuous of the Chief Examiner, leading to the charges. The court was tasked with determining the appropriate sentence for Michael's conduct.

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