R v Murray
[2018] VSC 133
•28 MARCH 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0055
| THE QUEEN (on the application of the Chief Examiner) | Applicant |
| v | |
| MICHAEL MURRAY | Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 25 JANUARY 2018 and 21 MARCH 2018 |
DATE OF SENTENCE: | 28 MARCH 2018 |
CASE MAY BE CITED AS: | R v MURRAY (Contempt Sentence) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 133 |
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CRIMINAL LAW – Sentence – Contempt of the Chief Examiner – Refusal to take oath or make affirmation – Contempt in respect of examination into serious alleged offences – Deliberate and flagrant conduct deserving strong denunciation – General and special deterrence – Restrictive management regime will substantially increase the burden of time in custody – Sentence of 8 months’ imprisonment – Major Crime (Investigative Powers) Act 2004 s 49.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Langmead QC with Mr A Imrie | Office of the Chief Examiner |
| For the Respondent | Mr D D Edwardson QC on 25 January 2018 Mr P Morrissey SC on 21 March 2018 | Grigor Lawyers |
HIS HONOUR:
On 31 March 2017, you were charged with contempt pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’).
On 20 October 2017, you were found guilty for the reasons as published in R v Williams (Contempt).[1] The uncontested background facts are as follows:
[1][2017] VSC 642.
(a)On 4 August 2016, the Court made coercive powers orders under s 9 of the Act, with respect to certain specified organised crime offences.
(b)On 1 March 2017, the Chief Examiner issued a witness summons pursuant to s 15 of the Act requiring you to appear before the Chief Examiner on 31 March 2017 to give evidence in relation to certain organised crime offences.
(c)On 31 March 2017, you attended before the Chief Examiner who made a non-publication direction pursuant to s 43(1) of the Act.
(d)Prior to the commencement of questioning, you were advised as to various preliminary matters, which relevantly included that:
(i) the privilege against self-incrimination did not apply;
(ii)the Act provided for a maximum penalty of 5 years’ imprisonment for the offence of refusing to take the oath or make an affirmation; and
(iii)the Act provided for witnesses who refuse to make an oath or affirmation to be charged with contempt.
(e)Relevantly, the transcript records the following exchanges between the Chief Examiner and you:
CHIEF EXAMINER: Are you willing to proceed today without legal representation?
RESPONDENT: Mate, I'm not gunna waste anyone's time. I'm not answering any questions today. I'm not lagging anyone, so you're wasting your time and mine. If you're gunna charge me, give me my charges this morning and that's it. I'm not answering anything.
…
CHIEF EXAMINER: So, [the respondent], that completes the preliminary matters. Do you have any questions about anything I've said so far?
RESPONDENT: Nuh.
CHIEF EXAMINER: Do you need to consult further with your legal representative before we commence?
RESPONDENT: Nuh.
CHIEF EXAMINER: Very well. I'm going to direct you to take an oath or make an affirmation. It will be in the form prescribed by the regulations.
Now, [the respondent], you've indicated to me you're not going to answer any questions today. Is that right?
RESPONDENT: Correct.
CHIEF EXAMINER: There's two ways we can proceed. You can and I'm not telling you what to do or advising you what to do, it's your choice — but you can refuse to take the oath or affirmation or you can refuse to answer questions.
Do you understand the difference?
RESPONDENT: Yep.
CHIEF EXAMINER: I'm going to direct you to take an oath or make an affirmation that will be in the form prescribed by the regulations. Are you prepared to take the oath or affirmation?
RESPONDENT: It's pointless taking the oath if I'm not answering questions, isn't it?
CHIEF EXAMINER: Well---
RESPONDENT: I'd be swearing an oath to answer truthfully.
CHIEF EXAMINER: Yes.
RESPONDENT: I'm not answering questions, so it's pointless.
CHIEF EXAMINER: Okay. So let me just understand it: you're refusing to take the oath or affirmation?
RESPONDENT: Yes.
CHIEF EXAMINER: Thank you. I'm now directing you to take an oath or affirmation in the form prescribed by the regulations. Will you take the oath or affirmation?
RESPONDENT: No.
CHIEF EXAMINER: Are you prepared to tell me, [the respondent], why you won't take the oath or affirmation?
RESPONDENT: Mate, this is very, very simple. This is set up for people to lag. I'm not a dog. I'm not answering questions. I'm not lagging anyone.
Can't make it any more simple than that. You guys are gunna ask questions about people that I might know or know. I'm not gunna answer any questions.
CHIEF EXAMINER: And why is that?
RESPONDENT: I'm not a dog, mate. l'm not lagging anyone.
CHIEF EXAMINER: That's your reason?
RESPONDENT: That's right.
…
CHIEF EXAMINER: Well, you've made it clear to me you're not taking oath or affirmation.
RESPONDENT: That's right.
CHIEF EXAMINER: If you don't take the oath or affirmation, I can't ask you any questions.
RESPONDENT: Okay. So it's pointless going on.
The respondent’s personal circumstances
You were born on 19 February 1978.
You grew up in a family environment that included physical abuse by both your parents to each other and to you. You have a sister who is two years younger than you.
You did quite well with your education until you developed significant behavioural issues and were expelled three times in Year 9 for fighting. Your parents sent you to the United States for three months to live with relatives in the hope of addressing the behavioural issues. You have had no contact with your family since the publicity surrounding your involvement with the Comancheros bikie group, an outlaw motorcycle gang (‘OMCG’).
In about 1996, at the age of 18, you obtained a security licence and, by the age of 21, you owned and operated your own security company. Your company expanded to 70 locations with some 314 employees. During this time you had a relationship with a woman, to whom you became engaged, for five years; but the relationship ended because of your infidelities.
In about 2004, you started managing gymnasiums. In the same year you were fined $500 and placed on a good behaviour bond without conviction for employing unlicensed crowd controllers.
In about 2005, you married your current wife to whom you have been married for about 14 years.
In mid 2007, you received an 8 month suspended sentence for ‘affray’.
In about 2008, you ceased involvement with the security company as a result of losing your security licence because of your criminal history. In about the same year, your wife had your only child, a daughter who is currently aged 9 years.
In 2013, you became the head of the Comancheros bikie group.
In April 2014, you were convicted of:
(a) possession of a drug of dependence, and fined $500;
(b) possession of testosterone and anabolic steroids, and fined $4,000; and
(c) possession of cartridge ammunition without a licence, and fined $4,000.
On 31 March 2016, you were convicted of attempting to pervert the course of justice and sentenced to a period of imprisonment of 68 days (which had already been served) and fined $9,000. You were also fined $1,000 for committing an indictable offence whilst on bail.
Your current circumstances are as follows:
(a)Your wife and child have left you as a result of difficulties associated with your infidelities, your involvement with the OMCG and associated issues including interactions with the police.
(b)You suffer from medical and mental health issues including:
(i)chronic adjustment order with anxious and depressed mood;
(ii)poly substance abuse disorder;
(iii)luteinising hormone disorder; and
(iv)glaucoma.
Sentencing principles
Section 49(10) of the Act provides that a contempt of the Chief Examiner is to be dealt with as if it were a contempt of an inferior court; and as if the certificate of charge were an application to the Supreme Court for punishment for contempt.
In Wood v Staunton (No 5),[2] Dunford J identified the relevant matters for consideration in assessing the proper punishment for contempt as follows:
[2](1996) 86 A Crim R 183.
(a) the seriousness of the contempt proved;
(b)whether the contemnor was aware of the consequences to himself of what he did;
(c) the actual consequences of the contempt on the relevant trial or enquiry;
(d) whether the contempt was committed in the context of serious crime;
(e) the reason for the contempt;
(f)whether the contemnor has received any benefit by indicating an intention to give evidence;
(g) whether there has been any apology or any public expression of contrition;
(h) the character and antecedents of the contemnor;
(i) general and personal deterrence; and
(j) denunciation of the contempt.[3]
[3]Ibid 185.
I consider these matters can all be all subsumed within the categories established by the sentencing guidelines in s 5 of the Sentencing Act 1991 (‘the Sentencing Act’), which apply to sentences imposed for contempt,[4] and in particular the following relevant matters identified in subsections (1) and (2).
[4]See Rich v Attorney-General [1999] VSCA 14 [22] and [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).
(1) The only purposes for which sentences may be imposed are—
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b)to deter the offender or other persons from committing offences of the same or a similar character; or
(c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d)to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.
…
(2) In sentencing an offender a court must have regard to—
(a) the maximum penalty prescribed for the offence;
…
(b) current sentencing practices;
(c) the nature and gravity of the offence;
(d)the offender’s culpability and degree of responsibility for the offence;
…
(daa) the impact of the offence on any victim of the offence;
(da) the personal circumstances of any victim of the offence;
(db) any injury, loss or damage resulting directly from the offence;
(e)whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
(f) the offender’s previous character;
(g)the presence of any aggravating or particular factor concerning the offender or of any other relevant circumstances.
In this case, I consider the following matters to be particularly relevant.
Maximum penalty prescribed for the offence
There is no maximum penalty prescribed for the offence. Contempt is the only criminal offence punishable summarily at common law and the penalty is at large.[5] The Act provides a maximum penalty of five years’ imprisonment for the cognate offence of refusing to take an oath or an affirmation under s 36(3).[6] It has been held that this maximum penalty is a useful comparator for sentencing under s 49 of the Act.[7]
The nature and gravity of offence and the offender’s culpability and degree of responsibility for the offence
[5]Allen v The Queen (2013) 36 VR 565, 574 [54] (Priest JA with whom Maxwell P and Weinberg JA agreed).
[6]The Act s 36(4).
[7]R v QF [2014] VSC 81 [16] (Croucher J); R v Smith [2017] VSC 708R [40] (Jane Dixon J); R v DA [2017] VSC 274R [6] (McDonald J).
Your refusal to be sworn, in accordance with the Chief Examiner’s lawful direction, was blatant and you have not sought to purge your contempt.
On your behalf, it was submitted that factors in mitigation of the seriousness of the offence were:
(a) the secrecy provisions and procedures under the Act were ineffective;
(b) your legal advice was to the effect that a refusal to be sworn and answer the questions before the Chief Examiner was not ‘a big deal’;
(c) you were unaware that you could have answered questions about yourself;
(d) the refusal to be sworn was of lower significance because the offences, which were the subject of the summons, have been substantially resolved; and there is no evidence that you had any involvement or knowledge of the offences; and
(e) your refusal to take the oath was not aggravated by rudeness or other offensive behaviour.
The last of the above is not contested and I will deal with each of the others in turn.
Secrecy provisions ineffective
Your counsel relied upon the following facts in support of the first contention:
(a)The summons to attend the examination was served by a member of the Echo Task Force, which is the Victoria Police unit charged with responsibility for OMCGs.
(b)On the date you were found guilty of this offence, being 20 October 2017, members of the Echo Task Force and the media were present near the entrance to the nominated courtroom.
(c)On 26 December 2017, the Herald Sun printed an article which refers to the current prosecution, but states ‘details of his offence cannot be published’.
(d)On 24 January 2018, you were arrested, and your residential address was raided. Two members of the Echo Task Force spoke to your solicitor in the public foyer of the Melbourne West Police Station and referred to the fact that you were to be in court the next day (being the day your plea in this proceeding was heard).
(e)Since your remand on 25 January 2018, the Herald Sun has published a further article stating that you had been ‘spotted in cuffs’ and are ‘believed to be the subject of an investigation by … Echo Taskforce but is said to have repeatedly refused to co-operate with authorities’.
(f)The members of the staff at the Melbourne Assessment Prison were aware of the charges for which you are being incarcerated.
It was submitted that you expressed your concerns about the secrecy of the process by saying to the Chief Examiner that:
Mate, this place is the worst-kept secret in Melbourne. Everyone knows who’s been to the Crimes Commission. Everyone knows who talks about these types of things. This is not a secret. You guys can try and keep it a secret. It’s not.
With respect to this submission:
(a) There is no evidence that the officers in the Echo Taskforce, who were aware of the circumstances of your refusal to give evidence, were other than Mr Nolan (who was present at the examination), persons assisting the investigation into the organised crime offences named in the document handed up to the Chief Examiner; or Victoria Police personnel, who received the information for the purposes of investigating or prosecuting an offence, as permitted by s 68 of the Act.
(b) With the exception of the service of the summons, the knowledge of others of your involvement before the Chief Examiner was subsequent to the institution of the contempt proceeding.
The maintenance of the confidentiality and secrecy provisions of the Act is of critical importance. The enforcement of the powers conferred under the Act will inevitably result in examinees perceiving that they are at risk, and/or in fact being at risk, if they co-operate in the examination. Accordingly, the need for strict compliance with the provisions, and for the examinees to have confidence in such compliance, cannot be over emphasised.
However, I do not accept, on the balance of probabilities, that your concerns about the lack of secrecy was the cause of you refusing to take the oath. In this respect I note the following:
(a) The Chief Examiner did ask you ‘Do you have any concerns for your safety or that of anybody connected with you in relation to your appearance here today?’, to which you replied ‘No’.
(b) It is not submitted that the threats, referred to below, were the result of the attendance before the Chief Examiner, or that your refusal was caused by a fear of retribution.
In the circumstances, I am satisfied beyond reasonable doubt that the principal reason for your refusal to comply was that which you gave at the examination, being that you did not intend to ‘lag’ and you were not a ‘dog’. In other words, you intended to maintain the code of silence.
Legal Advice
Your counsel submitted that your refusal was contributed to by the advice from your legal representative that it was not ‘a big deal’ to refuse to give evidence.
Assuming that you were so advised, you must now be well aware that it is a very serious matter; and you have not since offered to co-operate. Accordingly, I do not consider that the advice, if given, was causative of your refusal to co-operate.
Unaware that you could have answered questions about your own involvement
It was submitted that, as you stated to Dr Cidoni, you were unaware, at the time of the examination, that you could have answered questions about yourself.
I do not accept this submission because the Chief Examiner made it perfectly clear that, if your concern was about ‘lagging’ on others, you could answer questions about your involvement rather than other people’s involvement. In particular, the transcript included the following exchange:
CHIEF EXAMINER: I just need to ensure you understand your rights because what you’re saying to me is you don’t want to lag and you’ve asked me a question: isn’t this, to bring you in here - - -
MR MURRAY: Mm’hm.
CHIEF EXAMINER: - - - to just give information about other people? My primary purpose in bringing you in here today was to ask you about your involvement in the four offences set out on the summons. Are you prepared to answer questions about your involvement in them?
MR MURRAY: No.
CHIEF EXAMINER: If I could just hand that down to the witness, please. That’s the summons bringing you here today. You see the four offences that I am proposing to question you about?
MR MURRAY: Mm’hm.
CHIEF EXAMINER: You’re not prepared to answer any questions about any of those offences - - -
MR MURRAY: No.
CHIEF EXAMINER: - - - about your involvement? Not other people’s involvement, about your involvement.
MR MURRAY: My involvement or my alleged involvement?
CHIEF EXAMINER: Your alleged involvement.
MR MURRAY: No. Mate, this place is the worst-kept secret in Melbourne. Everyone knows who’s been to the Crimes Commission. Everyone knows who’s talks about these types of things. This is not a secret. You guys can try and keep it a secret. It’s not.
CHIEF EXAMINER: Do you want to tell me about that?
MR MURRAY: No, I don’t.
Refusal to be sworn was not of significance to the investigation
It was submitted on behalf of the applicant that I should find that the failure to give evidence had a significant effect on the investigation.
It was submitted by your counsel that the offences, in respect of which you were to be examined, have largely been resolved, with there being no evidence that you had any knowledge or involvement in the offending; and that, accordingly, I should infer that your refusal did not heavily impede the further investigations of the outstanding matters.
On the evidence, I am unable to make any finding about what effect your refusal to be sworn had on the investigation of the relevant offences.
However, for sentencing purposes, in my opinion it is relevant that:
(a) prior to issuing the summons, the Chief Examiner was required to be satisfied that it was reasonable to do so, after consideration of the evidentiary or intelligence value of the information sought to be obtained from you;[8] and
(b) you were summoned to give evidence about an organized crime offence, which, by definition, is a very serious offence.[9]
[8]The Act s 15(4).
[9]See the Act s 3AA.
Time in custody will be onerous
As a factor in mitigation that decreases the extent to which you should be punished, your counsel submitted that your time in custody would be more onerous on you than others because of the following factors:[10]
[10]Markovic v R (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
(a) You are concerned about the treatment for your medical conditions, while in prison.
(b) You will have enhanced anguish in prison because:
(i) you and your family are the subject of threats and are in danger; and
(ii)you have had no contact with your wife or daughter; and will have no contact with your daughter, other than letters and cards, because she is ‘completely terrified of prisons’.
(c) Your time in custody will be subject to a restrictive management regime as a result of your status with an OMCG.[11]
[11]As referred to in the respondent’s submissions, 23 November 2018 [13.3.5.2], [35] and [44].
Treatment for your medical conditions
You have received prompt treatment for your medical conditions except for the following:
(a) Due to your history of abuse of steroids, your luteinising hormone is not actively working and you require ongoing treatment; but your counsel submits that the medical staff at the Melbourne Assessment Prison has refused you the necessary therapy. There is a medical issue as to whether the treatment is appropriate, which may need to be resolved by the opinion of an endochronologist. There does not appear to be any reason to believe that the authorities will not arrange for you to receive appropriate treatment.
(b) After your eye drops for glaucoma ran out, there was a delay of about 7 days before replacement, which resulted in serious eye irritation. It was conceded that this matter had been remedied before the second plea hearing date; and that your treatment in prison for this condition was the same as it would be outside.
Threats and danger
With respect to the threats and danger, your counsel relied on the following:
(a)You have been approached on approximately four occasions by members of the Echo Task Force who have advised you that ‘there was a threat to [your] safety, a bounty on [your] head and that [your] life is in danger’, both before and after service of the summons for examination by the Chief Examiner.[12]
(b)Threatening handwritten letters were received in mid-January 2018 addressed to you and referring to you as being an informer and stating, among other things: ‘You’re a dead man’ and ‘We will kill your family’.
(c)The Echo Taskforce have communicated through your solicitor that, not only has a threat been made, but a plan has been discovered to cause harm to you and your family. This threat is apparently unrelated to the letters referred to in sub-paragraph (b) above. Your genuine concern for your family has caused you to engage a personal security guard to be stationed at your family’s current residence.
In particular, it was submitted that your medical conditions, the absence of communications with your family and the threats to your family and yourself caused considerable anguish to you in prison particularly because of the many hours you are required to spend by yourself under restrictive management regime, which results in an undue concentration on such issues.
[12]Respondent’s submissions [26].
Treatment in prison
With respect to your treatment in prison, your counsel submitted that your time in custody in 2014 was mostly spent in ‘lock down’ as a result of Corrections Victoria being unable to otherwise accommodate you safely from the risks arising through your status and associations with the OMCG. From the date of your remand until 12 February 2018, you were housed at the Melbourne Assessment Prison; and from that time you have been housed at the Acacia Unit of Barwon Prison. At both of these facilities, as a result of threats to you consequent on your status with the OMCG, you have been in 23 hour lock down in a cell without windows, under fluorescent light with only a one hour run out. The effects include the following:
(a) Even during the one hour run out, there is only a small amount of natural light through a hole in the roof. The fluorescent light is aggravating your light sensitivity and you have required treatment for its effects on your vision. The authorities have not approved of you wearing sunglasses. Your request to associate with another prisoner, during the run out period has been refused.
(b) You have very restricted access to telephones by comparison to other prisoners who are able to make calls during the day.
(c) You do not have access to the gymnasium.
(d) Your movement in the prison requires specialist staff, which creates delays.
The fact that an offender will serve all or part of a term of imprisonment under a restrictive management regime is ‘a factor to be taken into account in determination of the sentence’.[13] The weight to be attached to the factor will depend on the circumstances. If the need for the restrictive management regime arises from assistance with the administration of justice (for example as an informer or otherwise co-operating with authorities) or a perceived vulnerability to abuse by other prisoners, it may be a significant mitigating factor. [14] On the other hand, if the need for the restrictive management regime arises ‘as a consequence of … violence towards others, or of … drug use, or of … refusal to comply with the ordinary standards that must be maintained if the prison environment is to remain safe and stable’,[15] it may be of little or no significance.
[13]Milenkovski v The State of Western Australia [2014] WASCA 48 [172] (Buss JA after a detailed review of the authorities. McLure P appeared to agree [15], and Mazza JA [211] did agree, with Buss JA’s analysis but not with the application to the facts.
[14] R v Rostom [1996] 2 VR 97, 102-3 (Charles JA with whom Callaway JA and Vincent AJA agreed); R v Stevens [2009] VSCA 81 [22] (Maxwell P, Vincent JA and Hargrave AJA).
[15]R v Stevens [2009] VSCA 81 [22] (Maxwell P, Vincent JA and Hargrave AJA).
It has been recognized that the need for the restrictive management regime, similar to those in place for you, arising from an offender’s voluntary participation in an OMCG, can be a mitigating factor.[16]
[16]R v Tuivaga [2013] NSWSC 1626 [24] (PriceJ).
For the following reasons, I consider that you will probably spend all or most of your term of imprisonment in a restrictive management regime:
(a) The need for the regime arises from your participation in the OMCG prior to your imprisonment, which is not a variable.
(b) The authorities have considered it necessary to maintain the regime after your transfer from the Melbourne Assessment Prison to Barwon Prison.
(c) No reason has been suggested why the perceived risk to you is likely to change during the balance of your term.
In my opinion, although the relevant risk arises from your voluntary participation in the OMCG, the fact that you are likely to spend all or most of your time in a restrictive management regime is a significant mitigating factor because:
(a) your period in a restrictive management regime will be equivalent to a longer loss of liberty than under the ordinary conditions of imprisonment; and
(b) although it was not alleged that it is unnecessary, the restrictive management regime required in your case is, in my opinion, very harsh.
Your previous character
Given your prior convictions and circumstances, your counsel did not submit that I should proceed on the basis that you were a person of otherwise good character. I accept the applicant’s submission that the only relevant antecedents are those for contempt or cognate offences.[17]
[17]R v Slaveski (Sentence) [2012] VSC 7 [27] (Whelan J); Australian Competition and Consumer Commission v Levi (No 2) (2008) ATPR ¶42-257, 49,611–2 [103]– [110].
As noted above, you have a prior conviction for attempting to pervert the course of justice for which, on 31 March 2016, you were sentenced to a period of imprisonment of 68 days (which had already been served) and fined $9,000.
Current sentencing practices
I have been provided by counsel for each party with numerous cases relating to the sentencing of persons for contempt both under the Act and otherwise. I have had regard to the cases, and in particular the factors which were taken into account.
I do not propose to undertake a comparison between those cases and the current case ‘because the circumstances are incidentally variable as is the impact of different contempts upon the court process’.[18] Further, ‘[i]n fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.’[19] Comparable cases establishing a range do not fix ‘the boundaries within which future judges must, or even ought, to sentence’,[20] but may serve as a ‘yardstick’ useful to ‘illustrate (although not define) the possible range of sentences available.’[21] However, in my opinion, your contempt requires a greater sentence than any imposed under s 49 of the Act in the numerous cases to which I have been referred. In particular, I note the following:
[18]Attorney-General v Rich [1998] VSC 45 [13] (Byrne J).
[19]DPP v OJA (2007) 172 A Crim R 181, 196 [30].
[20]Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoting DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 70–1 [304] (Simpson J).
[21]R v Pham (2015) 256 CLR 550, 560 (French CJ, Keane and Nettle JJ), quoted in DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063, 1073 [52] (Kiefel CJ, Bell and Keane JJ).
(a) Your blunt refusal to co-operate was in direct defiance of the legislation and was principally the result of your refusal to break the code of silence — it being conceded that your refusal was not the result of a fear of retribution.
(b) You have demonstrated no remorse and your prospects of rehabilitation are poor.
(c) You have a prior conviction for a cognate offence in 2016.
Conclusion
In summary, pursuant to s 5(1) of the Sentencing Act, the only purposes for which sentences may be imposed are to punish, to deter others (general deterrence) and you (specific deterrence) from committing the same or similar offences, denunciation, protection of the community, just punishment, and rehabilitation.
Although the Act provides that an examinee’s answer is generally not admissible against him or her in criminal proceedings,[22] in unequivocal terms the Act removes the privilege against self-incrimination in an examination before the Chief Examiner.[23] The privilege against self-incrimination is a substantive common law right;[24] but the power of the legislature to abrogate the privilege is not doubted.[25]
[22]The Act s 39(3).
[23]The Act s 39(1).
[24]Reid v Howard (1995) 184 CLR 1, 11–2 (Toohey, Gaudron, McHugh and Gummow JJ).
[25]X7 v Australian Crime Commission (2013) 248 CLR 92, 111–2 [28] (French CJ and Crennan J).
In fact, the very purpose of the Act was to invest the Chief Examiner with powers ‘designed to assist police in breaking the “code of silence” that often thwarts investigation of organised crime’.[26] This is consistent with the purposes of the Act, as set out in s 1:
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b) to combat and reduce the incidence of organised crime offences.
[26]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2014, 613 (Sherryl Garbutt, Minister for Community Services).
Your deliberate and flagrant refusal to comply with the requirements of the statute was principally because you want to support the code of silence, which is the very mischief to which the Act is directed.
The legislature has spoken clearly and the Court must, in order to achieve the purposes of general and specific deterrence and denunciation, impose ‘salutary deterrent penalties … Otherwise [the Act] would become a toothless paper tiger in the legislature’s patent intent to detect and prosecute organised criminal activities by impinging on the common law right to silence and compelling witnesses to answer the examiner’s questions’.[27]
[27]R v Abell [2007] QCA 448 [33], cited in R v Neil Smith [2017] VSC 708R [61] and [106] (Jane Dixon J). Also see R v DF [2014] VSC 213 [27]–[28] (John Dixon J); R v QF [2014] VSC 81 [31]–[32] (Croucher J); R v Debono [2013] VSC 413 [34] (Kyrou J).
In the circumstances of this case, I consider that the purposes of general deterrence, specific deterrence and denunciation require a substantial sentence.
I have taken into account the following:
(a) Your time in prison has been, and is likely to continue to be, subject to a harsh restrictive management regime.
(b) You will endure anguish, during your time in prison, because of the threats of harm to your wife and daughter.
(c) Sub-sections 5(3) and 5(4) of the Sentencing Act which, reflecting the common law principle of parsimony, provide that a court must not impose a sentence that:
(i)is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed; or
(ii)involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
In the circumstances, I sentence you to a period of imprisonment for 8 months.
Pursuant to s 18 of the Sentencing Act, I declare that the respondent has served 63 days, including today, in custody by way of pre-sentence detention.
At the commencement of this sentencing hearing, I ordered that:
(a) the name of the respondent in the title of the proceeding be amended to Michael Murray; and
(b) paragraphs [1]–[4] of the order made under ss 18 and 30 of the Open Courts Act 2013, on 31 March 2017, be discharged.
Pursuant to s 28 of the Open Courts Act 2013, there is a presumption in favour of hearing a proceeding in open court. I am not satisfied that any of the grounds set out in s 18 with respect to suppression orders; or s 30 with respect to a closed court order respectively, are satisfied.
In particular, it was not submitted that the publication of the respondent’s refusal to co-operate with the Chief Examiner would increase the danger to the respondent; or that the lifting of the suppression would prejudice the administration of justice or the conduct of investigations.
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