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R v Murray

R v Murray

Case [2018] VSC 133 28 March 2018

Contempt of Court

Sentencing

Criminal Law

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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.

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 Murray

Details

AGLC: R v Murray [2018] VSC 133
Case: [2018] VSC 133
Decision Date: 28 MARCH 2018

CaseChat Overview and Summary

The case of R v Murray involved the defendant, Murray, who was facing contempt charges related to his refusal to take an oath or make an affirmation during an examination into serious alleged offences. The matter was heard in the County Court of Victoria. Murray's conduct was found to be deliberately and flagrantly contemptuous, deserving strong denunciation. The court was tasked with determining an appropriate sentence that would serve the purposes of general and special deterrence while also considering the restrictive management regime that would substantially increase Murray's burden of time in custody.

The primary legal issue was the appropriate sentence for Murray's contempt of the Chief Examiner. The court needed to balance the gravity of the contempt, which involved serious alleged offences, against the restrictive management regime that would significantly increase the time Murray would spend in custody. The court also considered the need for general deterrence, to discourage similar conduct in the future, and specific deterrence, to prevent Murray from engaging in such conduct again.

The court held that Murray's conduct was both deliberate and flagrant, warranting a sentence that would serve as a strong denunciation. The restrictive management regime was seen as a significant factor that would substantially increase Murray's time in custody. The court ultimately determined that an 8-month imprisonment sentence was appropriate, taking into account the nature of the contempt, the need for deterrence, and the restrictive management regime. The sentence was imposed under the Major Crime (Investigative Powers) Act 2004, section 49.

Murray was sentenced to 8 months' imprisonment for the contempt of the Chief Examiner. The court emphasised the need for strong denunciation and deterrence, while also considering the impact of the restrictive management regime on Murray's time in custody. The sentence reflects the court's view that Murray's conduct was both deliberate and flagrant, and that a substantial period of imprisonment was necessary to achieve the objectives of general and special deterrence.

Orders