R v Miles
[2018] VSC 669
•9 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0316
| THE QUEEN (on the application of the Chief Examiner) | Applicant |
| v | |
| OSCAR MILES (a pseudonym) | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 5 February 2018; 28 February 2018 |
DATE OF SENTENCE: | 9 August 2018 |
CASE MAY BE CITED AS: | R v Miles |
MEDIUM NEUTRAL CITATION: | [2018] VSC 669 |
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CONTEMPT – Examination under Major Crime (Investigative Powers) Act 2004 (Vic) – Contempt – Refusal to answer questions – No explanation for contempt – Totality – Reasonably good prospects of rehabilitation – Major Crime (Investigative Powers) Act 2004 (Vic) ss 36(4) and 49.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Fisken | Office of the Chief Examiner |
| For the Respondent | Ms J Fayman | Fayman Lawyers |
HIS HONOUR:
Introduction
On 28 February 2018, the respondent admitted a charge of contempt brought by a written Certificate of Charge issued in the name of the Chief Examiner pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). The contempt occurred on 7 December 2017 when the respondent refused to answer questions asked by the Chief Examiner’s delegate (‘the examiner’) in answer to a witness summons. The respondent’s conduct constituted contempt of the Chief Examiner pursuant to s 49(1)(b) of the Act.
Whilst s 49(1)(b) of the Act creates the offence of contempt of the Chief Examiner, the Act does not specify any particular penalty or maximum penalty for such offending.
Section 49(10) provides that 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; and (b) the Certificate of Charge were an application to the Supreme Court for punishment for the contempt.
The parties correctly proceeded on the basis that the penalty for the present offending before the Court is at large. However, it was argued that the five year maximum penalty provided for by s 36(4) of the Act, relating to the specific offence of refusing or failing to take an oath or make an affirmation, is a useful means of comparison for the present offending. I agree that is a useful approach to be taken in this matter.[1]
[1]See: R v QF [2014] VSC 81 (Croucher J).
Both parties accepted that the offending admitted by the respondent warranted a sentence of imprisonment.
Background to the offending
On 4 August 2016, Coghlan J made a coercive powers order in respect of nine organised crime offences (‘the coercive powers order’). The order was further extended and varied on 3 August 2017. The organised crime offences set out on the coercive powers order included an attempted murder.
On 29 November 2017, the Chief Examiner issued a witness summons pursuant to s 15 of the Act requiring the respondent to attend before the Chief Examiner to give evidence at an examination on 7 December 2017 (‘the witness summons’). The witness summons stated that the respondent was required to give evidence before the Chief Examiner in relation to a shooting incident.
On 4 December 2017, the Chief Examiner signed an Instrument of Delegation, thereby delegating functions, duties and powers under the Act in respect of the examination of the respondent to Joanne L. Smith (‘the examiner’).
Circumstances of the respondent’s offending
The respondent attended before the examiner on 7 December 2017. Before questioning commenced, the examiner addressed the preliminary requirements set out in s 31 of the Act. This included an instruction that the witness must answer questions when required to do so and reference to the penalties if he refused to answer relevant questions.
When requested, the respondent made an affirmation, and questioning commenced. After a short time, the respondent indicated he wished to speak to his legal representative, and the matter was stood down. When the examination resumed, the respondent told the examiner that he was not willing to answer any further questions. The following exchanges then took place:
EXAMINER: Now Mr [Miles], the question that I asked you before the break was where were you living in [redacted] or it was: have you lived at any other address in the last three years?
[MILES]:So I’ve spoken to my lawyer, seeked legal advice, and I’m going to be declining any questions. I don’t mean any disrespect to you or the court.
EXAMINER: So when you say you’re going to be declining any questions, what does that mean?
[MILES]:I won’t be answering any more questions.
EXAMINER: Okay. Well, I need to put some questions to you. So you understand the penalties in respect of refusing to answer a question?
[MILES]:Yes, my lawyer has made me aware of this.
EXAMINER: Yes. So I will read that provision to you. Mr [Miles], what – do you have a reason as to why you’re refusing to answer further questions?
[MILES]:No, I don’t.
EXAMINER: You don’t have a reason for refusing to answer further questions?
[MILES]:No.
EXAMINER: A person – it’s – section 37 of the Major Crime (Investigative Powers) Act 2004 states, sub-section (2):
A person appearing as a witness before the Chief Examiner must not, without reasonable excuse at an examination refuse or fail to answer a question that he or she is required to answer by the Chief Examiner.
A person who contravenes sub-section (2) is guilty of an indictable offence and is liable to level 6 imprisonment —
which is five years maximum. Do you understand, Mr [Miles]?
[MILES]:Yes, I do.
EXAMINER: Section 49 of the Major Crime (Investigative Powers) Act provides a person who —
A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person —
(b), sub-section (1)(b) —
being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or without reasonable excuse refuses or fails to answer any question relevant to the subject matter of the examination.
So, Mr [Miles], I’ll ask you some questions. Where were you living in May 2015?
[MILES]:I’m respectfully declining to answer any further questions.
EXAMINER: Mr [Miles], I require you to answer the question. Where were you living in [redacted]?
[MILES]:I am respectfully declining to answer any questions, ma’am.
EXAMINER: Now, you’ve indicated that you’ve entered a plea of guilty to a charge of reckless conduct endangering life relating to a shooting on [redacted]. Is that correct, Mr [Miles]?
[MILES]:I am declining to answer any further questions, ma’am.
EXAMINER: [Redacted] What was your involvement in that offence, Mr [Miles]?
[MILES]:I’m declining to answer questions.
EXAMINER: Mr [Miles], I require you to answer the question. What was your involvement in the offence [redacted]?
[MILES]:I’m not – will not be answering any further questions, ma’am.
EXAMINER: Mr [Miles], were you driving the vehicle that was used in that offence on [redacted]?
[MILES]:I will not be answering that question, ma’am.
EXAMINER: Mr [Miles], I require you to answer the question. Were you driving the vehicle which was used in the offence on [redacted]?
[MILES]:I will not be answering any question, ma’am.
EXAMINER: Mr [Miles], who was responsible for shooting [redacted]?
[MILES]:I won’t be answering any further questions, ma’am.
EXAMINER: Mr [Miles], I require you to answer the question. Who was responsible for shooting at [redacted]?
[MILES]:I apologise, but I won’t be answering any more questions.
EXAMINER: Mr [Miles], do you have a reasonable excuse for refusing to answer these questions?
[MILES]:I’ve just chosen not to answer the questions.
EXAMINER: You understand that choosing not to answer the questions does not constitute a reasonable excuse?
[MILES]:Yes, I do, ma’am.
Following this exchange, the examiner told the respondent that any evidence he gave could not be used against him. He was also asked whether he had any concerns at all and responded that he did not. The respondent advanced no reason for declining to answer questions as directed by the examiner.
The matter was stood down and the respondent was directed to remain in a room at the Chief Examiner’s office. A Certificate of Charge and arrest warrant were drawn up and the respondent was informed he was in contempt of the Chief Examiner.
When the hearing resumed, the respondent was offered the opportunity to reconsider his position, but maintained his refusal to answer any questions put to him. The examiner then told the respondent that she would sign a Certificate of Contempt, and the charge was read into the record of the proceedings. The examiner also signed a warrant of arrest, and the respondent was told he would be taken directly to the Supreme Court.
On the same day, having been charged with contempt of the Chief Examiner, the respondent was brought before this Court, pursuant to s 49(4) of the Act. Beale J released the respondent on bail, with the condition he attend Court at a later date.
Personal circumstances of the respondent
The respondent is 27 years old. He has apparently been well educated and has hard- working parents and family. He experienced family hardships in his formative years, difficulties at school, debt in the family, and instances of bullying behaviour. Nevertheless, he began a university course, although this was not completed. In or around 2014, it appears the respondent began associating with the wrong people, which led him to become involved in the offending underpinning the current matter.
Until that offending occurred in 2015, the respondent was apparently a productive member of the community. I was told the respondent has now taken steps to disassociate himself from that world. I was informed that following his release on bail there were positive changes in his life relating to his work, values, relationships, and family and friends. I have been told the respondent is now in a stable relationship.
Prior offending
[Redacted].
The respondent originally faced a charge of attempted murder in respect of this offence. Shortly before the committal hearing was listed to commence, the matter resolved with his plea of guilty to a lesser charge. The respondent pleaded guilty to one charge of engaging in conduct endangering life and his bail was revoked. When he appeared before me in this proceeding on 28 February 2018, he had been remanded in custody and was awaiting his plea hearing.
The respondent’s plea hearing took place in the County Court. He was sentenced to three years imprisonment, with a non-parole period of two years to be served before becoming eligible for parole.
Psychological assessments
The respondent provided the Court with two psychological reports from Mr Patrick Newton, dated 31 January 2018 and 26 February 2018. In his first report, Mr Newton had not considered the events alleged to have taken place before the examiner, due to the strict secrecy provisions surrounding the Chief Examiner’s activities. An exemption was obtained from the Chief Examiner to inform Mr Newton about the respondent’s contempt and he prepared the second report. This was entirely appropriate as he was then able to provide a fully informed opinion.
Mr Newton concluded that the respondent does not suffer from any form of thought disorder or psychosis and, whilst his ability for moral reasoning is unsophisticated, he is clearly aware of the wrongfulness of his actions and understands their consequences. He diagnosed the respondent as suffering from an adjustment disorder with mixed anxiety and depressed mood.
The respondent disclosed to Mr Newton that he experienced an episode of a drug abuse relapse towards the end of 2017. It was submitted that disclosing this was to his credit, as he could have easily not done so to falsely attest to his rehabilitation. It was submitted that the respondent’s willingness to reveal information against his interests could give the Court more confidence to accept the submission he was genuinely concerned about his safety when appearing before the examiner.
During the hearing a number of written character references were tendered. I note the referees were aware of the respondent’s prior offending, but not of the circumstances of his contempt, due to the confidentiality provisions. I have taken those references into account and given them appropriate weight. It was submitted that, irrespective of its limitations, that material supports the proposition the respondent is undergoing a process of rehabilitation.
Submissions of the parties
The respondent’s submissions
The respondent submitted that there is evidence he acted in an apologetic manner when questioned by the examiner, and that I should be satisfied he made a genuine apology for his offending. In evaluating this issue, I note that the respondent did not provide a reason for his refusal to answer questions at the time of the examination, despite being specifically asked. I am not satisfied that the respondent meaningfully apologised for his offending at the time , or that his contemptuous behaviour has been purged. However, I accept he did not approach the examiner’s directions in an abusive or militaristic manner, or in promotion of an ideology seeking to undermine the role of the Chief Examiner, or the legislative scheme. The respondent remained respectful, albeit firm that he would not cooperate.
It was submitted that when the respondent declined to answer questions before the examiner, he did so through a concern for his safety, and that this should be a factor in mitigation of his offending. Whilst the respondent did not say anything to the examiner at the time, it is argued he made this position clear to Mr Newton when he was able to do so. He informed Mr Newton that he had got on the ‘wrong side of people’, and he feared that they would have ‘not let things rest’. He informed Mr Newton that his concerns about his safety, and that of his family and girlfriend, had been weighing on his mind and causing him distress.
The applicant’s submissions
The applicant submitted that the respondent’s offending was serious, and tended to undermine the primary purpose of the legislative scheme. It was submitted that the respondent acted deliberately, in circumstances where he was represented by Counsel and was clearly informed that his refusal to comply with the examiner’s directions could bring about serious consequences, involving a penalty. Accordingly, it is submitted the respondent had a clear idea of the implications of his offending.
The Chief Examiner does not accept the assertion that the respondent feared for his safety, submitting it carries a strong suggestion of recent invention. The applicant informed me it was correct that the respondent was not lawfully able to inform his reporting psychologist about the hearing before the examiner. However, the Chief Examiner submitted the respondent was not prevented from informing the psychologist about any fears he had from his associations with people engaged in criminal activity, without providing the full picture about why he may have been so concerned.
Further, it was submitted that I should not find that the respondent had provided an apology for his offending. It was recognised that his approach to the examination and the examiner was not abusive.
Sentencing factors
The decision in Wood v Staunton(No 5)[2] identified a number of factors relevant to sentencing in cases of contempt, with circumstances similar to this case. Those factors have been widely applied and endorsed, and are well understood. I have had regard to the factors that I consider relevant to the present circumstances.
Further, s 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed. These apply to sentences imposed for contempt and I have had regard to them in determining the sentence to be imposed in this case.[3]
[2](1996) 86 A Crim R 183, 185.
[3]R v Murray [2018] VSC 133 [17]; see also Rich v Attorney-General [1999] VSCA 14 [22], [46]–[47] (Winneke P, with whom Callaway and Buchanan JJA agreed); R v The Herald and Weekly Times Pty Ltd [2008] VSC 251 [42]–[52] (Kyrou J).
Seriousness of the offending
The respondent’s refusal to answer the examiner’s questions constituted a serious example of this type of conduct. In this particular examination, his refusal to answer questions undermined a principle purpose of the Act, directed at investigating organised crime offences. In R v Debono,[4] Kyrou J emphasised the legislative scheme is ‘an important mechanism to uphold the rule of law and to keep the community safe’.
[4][2013] VSC 413 [4].
Further, the examiner was making enquiries about an alleged offence of attempted murder, committed with a firearm and involving a number of shots fired [redacted]. Attempted murder is a very serious offence. The respondent’s refusal to answer questions thwarted a line of investigation directed towards establishing the identity of the person who fired the shots. Having driven the principal offender to the scene of the shooting, it is reasonable to conclude the respondent knew that person’s identity, or could at least provide important evidence to establish their identity.
General deterrence
General deterrence is a paramount sentencing consideration in a contempt hearing such as this. The provisions of the Act are intended to be a powerful weapon in the armoury against organised crime. Those refusing or failing to comply with its provisions should understand that stern punishment awaits. In R v Debono, Kyrou J made it quite clear that:
the compulsory evidence provisions in the Act are important elements in achieving the Act’s purpose of combating organised crime in this State. A refusal by a person brought before the Chief Examiner to take an oath or to make an affirmation can significantly frustrate the Act’s purpose. It is therefore necessary for the sentence that is imposed on you to be such as to deter others from engaging in similar conduct.[5]
[5]Ibid [34].
Denunciation
It is appropriate in cases involving contempt of the type committed by the respondent to include denunciation as a significant sentencing consideration, in line with community expectations. In assessing the weight to give this sentencing purpose, I have taken into account the respondent’s apparent motivation for his actions. I will extend a degree of moderation to this sentencing factor given my finding that the respondent was concerned for his safety when appearing before the examiner.
Specific deterrence, community protection and rehabilitation
I do not consider specific deterrence to be a significant factor in assessing the appropriate sentence to be imposed on the respondent. He has a limited prior history and there is no material before me to suggest he is likely to be called before the Chief Examiner again with the risk that he might commit the same offence. I do not think that the sentence requires a significant component directed towards protection of the community from any future offending. I acknowledge his plea of guilty, his relative youth, and the support he appears to have from a currently stable relationship. These factors tend to support the conclusion that the respondent’s prospects of rehabilitation appear to be reasonable.
Parsimony
Applying the principles set out in s 5 of the Sentencing Act, a court must not impose a sentence that is more severe than is necessary to achieve the purpose or purposes for which the sentence is imposed.
Totality
At the hearing in this matter, I was informed the respondent was yet to be sentenced in the County Court in respect of his original offending. Due to restrictions on reporting cases involving the Chief Examiner, a County Court judge may not be made aware of these proceedings and may not, therefore, be in an informed position to consider the totality principle. As such, so that I could properly have regard to totality, I considered it appropriate to delay passing sentence in this matter until the respondent was sentenced for his original offending.
Having since been sentenced in the County Court, the respondent is currently serving a sentence of three years imprisonment with a non-parole period of two years. It was correctly submitted on behalf of the applicant that the respondent’s conduct before the examiner was different to that before the County Court. The two pieces of offending are distinctly different and involve different offence elements. Nonetheless, I am conscious that they arose from the same events, and that the sentence passed should not doubly punish the respondent. Accordingly, I consider it appropriate to moderate the sentence imposed for the contempt offence.
Conclusions
I am satisfied that the respondent’s actions amounted to a serious example of this type of offending. It is likely the respondent had significant evidence to give as to the identity of the principal offender. It was conceded on behalf of the respondent that this line of investigation was thwarted as a result of his contemptuous conduct. For the reasons already discussed, the offending must bring about a sentence that deters others from committing similar behaviour.
The respondent’s decision to decline to answer questions was deliberate and flagrant. He was legally represented and had received legal advice, and was clearly aware of the consequences attaching to his decision. He was told that the evidence he would give could not be used against him, and was given the opportunity to change his mind after the matter was stood down, but continued to refuse to answer questions. The respondent’s situation can be contrasted with that of an unrepresented person, who may not have understood the consequences.
Although the contemptuous behaviour was deliberate and persistent, I accept that the respondent was not abusive and remained polite at all times.
The respondent’s admission of the contempt is required to be taken into account. It has utilitarian value and I treat it as a significant mitigating factor.
The question of the respondent’s fear for his personal safety remained a matter of some contest between the parties. I note that the first time the issue of safety arose was shortly before the plea hearing in this matter. In respect of his initial failure to inform his psychologist about his fears regarding his drug associates, it is my view this was likely due to the limitations on what he thought he could say to the expert witness.
No other motivation was put before me to explain why the respondent declined to answer questions. Whilst no objective evidence was adduced to demonstrate the respondent might have faced an actual threat, it appears to me that the relevant question concerns whether he had a belief that he may have faced a threat. At the time of his index offending, the respondent associated with people in the drug world and his offending involved a serious exhibition of violent conduct. In all the circumstances, I am prepared to give the benefit of the doubt to the respondent that he had a degree of fear for his safety, and that of others connected to him.
However, I will afford this factor modest weight in mitigation in this case. The Act is designed to ensure the protection of examinees in cases where there are genuine fears of retribution. The Chief Examiner can ensure the protective scheme operates effectively if concerns about safety are expressed at the time of the examination, when the examiner can make some assessment of their validity. This is not a case where there was objective evidence of specific threats put before the examiner, or before me.
Ultimately, the weight in mitigation to be given to contemnors’ safety concerns must be balanced against the consideration that compliance with the Act serves its purpose of the administration of justice. To achieve the objectives of the Act, examinees must understand that it is compulsory to answer questions asked on behalf of the Chief Examiner.
Some limitations apply to the character references tendered at the plea in this matter, as those people were not aware, as they were not lawfully permitted to be aware, of the respondent’s full circumstances in being before this Court. I accept the references, but afford a degree of less weight to them than I might have otherwise.
As to the respondent’s prospects of rehabilitation it appears to me they are reasonably favourable. The respondent has a limited criminal record, and it appears that there has been no further offending.
I have taken into account the principle of totality when coming to my sentencing decision. I have also reviewed previous sentencing decisions of this Court in cases of contempt with similar circumstances to the present, and taken into account the sentencing practices and principles developed therein.
In all the circumstances the respondent will be sentenced to six months imprisonment. I order that two months of that sentence will be served concurrently with the sentence he is now undergoing.
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