R v The Herald and Weekly Times Pty Ltd
[2008] VSC 251
•17 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7083 of 2007
| THE QUEEN (on the application of the Prothonotary of the Supreme Court of Victoria) | Applicant |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LIMITED (ACN 004 113 937) | First Respondent |
| and | |
| PETER BLUNDEN | Second Respondent |
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JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2008 | |
DATE OF JUDGMENT: | 17 July 2008 | |
CASE MAY BE CITED AS: | R v Herald & Weekly Times Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 251 | |
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Contempt of court – guilty plea – factors relevant to whether to convict and what penalty to impose – pressures arising from publication deadline – weight to be given to the obtaining of legal advice where the content of the legal advice is not disclosed – media group – special position of editor.
Sentencing Act 1991 (Vic) – ss 7 and 8, Sentencing Act – extent to which Sentencing Act applies to punishment for contempt of court.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms P Tate SC, S-G and Mr C Caleo SC | Victorian Government Solicitor |
| For the Respondents | Mr W Houghton QC and Ms R Enbom | Corrs Chambers Westgarth |
HIS HONOUR:
Introduction and summary
This is an application by originating motion under r 75.07 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) (“Rules”) for punishment of a contempt of court allegedly constituted by the publication of a graphic accompanying an article in the Herald Sun on 7 February 2006. The application is brought by the Prothonotary of the Supreme Court. Following an amendment to the originating motion by consent, the application is made against The Herald and Weekly Times Pty Limited (“HWT”), the proprietor and publisher of the Herald Sun when the graphic was published, and Peter Blunden, the editor-in-chief of HWT and the editor of the Herald Sun at that time.[1]
[1]The application was originally made against two other individuals who were the authors of the article. Following the filing of affidavit evidence that established that the two individuals did not write or contribute in any way to the graphic accompanying the article, the originating motion was amended by consent to remove the two individuals as respondents.
HWT and Mr Blunden pleaded guilty to the charge of contempt and apologised to the Court. Accordingly, the matter proceeded before me, in essence, as a plea.
In relation to HWT, I have decided to record a conviction and impose a fine of $10,000. In relation to Mr Blunden, I have decided not to record a conviction and not to impose any penalty.
Facts
On 6 February 2006 at approximately 10.00pm, Mario Condello, who had been widely reported to have “gangland” connections, was shot dead outside his home. One of the many articles that were published in the Herald Sun on 7 February 2006 on Mr Condello’s death was accompanied by a graphic headed “Victims of Melbourne’s Gangland Killings”. The graphic set out 27 items containing brief details of persons who had been killed and, in most cases, a photograph of the deceased. One item in the graphic contained a photograph of Housam Zayat and the words: “September 11, 2003 – Housam Zayat, 32, a violent criminal, is forced from his car and shot dead in a paddock near Werribee, south-west of Melbourne” (“the offending words”). The last item dealt with the shooting of Mr Condello.
At the time the graphic was published, Nicholas Riad Ibrahim was on trial in this Court on a charge of murdering Mr Zayat. The trial commenced before Nettle JA and a jury on 30 January 2006 and concluded on 17 February 2006. Mr Ibrahim had pleaded not guilty. He admitted to shooting Mr Zayat but relied on two alternative “defences” to the charge: self-defence and provocation. It was not part of the prosecution’s case against Mr Ibrahim that the killing was linked to the so-called “gangland wars” or that Mr Zayat had been forced from his car before being shot.[2]
[2]See R v Ibrahim [2006] VSC 96.
The graphic was drawn to Nettle JA’s attention. On 10 March 2006, his Honour ordered, pursuant to r 75.07 of the Rules, that the Prothonotary apply for punishment of the contempt of court constituted by the publication of the offending words in the graphic. The Prothonotary made such an application by originating motion dated 5 July 2007.
The circumstances in which the graphic came to be published were the subject of an affidavit sworn by Mr Blunden and an affidavit sworn by Damon Johnston, who was the chief-of-staff of the Herald Sun on 6 February 2006. Neither deponent was cross-examined.
According to Mr Blunden’s affidavit, the standard procedure in the publication of an article in the Herald Sun involves the following steps. First, the text of the article (known as the “copy”) is filed by the journalist with the “news desk”. The chief-of-staff or some other person on the news desk reviews the copy and decides whether it will be published in the following day’s newspaper. If it is decided that the copy will be published, it is forwarded to the “back bench” which comprises senior journalists. A person on the back bench then reviews the copy for publication. If the back bench has any legal concerns in relation to the copy, it is sent to HWT’s in‑house or external legal advisers for review and provision of legal advice. The standard practice is that copy concerning criminal proceedings is sent for legal advice. After the back bench has finalised the copy and received any legal advice, the copy is sent to the sub-editors for checking, editing and preparation of headlines and captions to accompany the article. If the copy is to include a graphic or artwork, it is sourced from the graphics editor. If the copy was the subject of legal advice, the standard practice is for headlines, captions, graphics and artwork to also be submitted for legal advice.
Mr Blunden also deposed that HWT provides its journalists and editorial staff with training about the various legal issues relevant to publishing, including the laws of defamation and contempt. HWT also has an electronic database that contains details about suppression orders and pending criminal proceedings. All HWT employees have access to the database. A journalist who prepares copy about court proceedings or persons accused of criminal offences is expected to check the database.
On 6 February 2006, following the shooting of Mr Condello, Mr Johnston decided that legal advice should be sought about the copy concerning the shooting. He therefore sent many, if not all, of the articles to HWT’s legal advisers for their advice and spoke to the advisers by telephone numerous times. At around midnight, Mr Johnston received the graphic for his review. The graphic with the headline “Victims of Melbourne’s Gangland Killings” had previously been published in the Herald Sun on 1 April 2004. A reference to the killing of Mr Condello was added to the bottom of the graphic as the last item. Mr Johnston telephoned one of HWT’s external legal advisers, Justin Quill of Corrs Chambers Westgarth, to obtain legal advice in relation to the graphic. He received advice and made some changes to the graphic before it was published. There was no evidence about the content of the advice, and during argument I was informed by Mr Houghton QC, who appeared with Ms Enbom for the respondents, that neither Mr Johnston nor Mr Quill had a clear recollection of the content of the advice or whether it dealt with the offending words.
During argument, Mr Houghton informed me that the failure to identify the offending words as potentially prejudicial to Mr Ibrahim’s then current trial was attributable to a failure by HWT personnel to check the electronic database to ascertain that the trial of Mr Ibrahim for the murder of Mr Zayat was in progress. Mr Houghton submitted that the failure to check was due to human error caused by the high volume of copy to review under tight time constraints on the night of 6 February 2006 and possibly by the fact that the graphic, with the offending words, had been published previously without any adverse consequences. Ms Tate SC, Solicitor-General for Victoria, who appeared with Mr Caleo SC for the Crown, did not take issue with these submissions and, accordingly, I accept them for the purposes of the plea.
As a result of the publication of the graphic accompanying the article, the prosecutor and counsel for Mr Ibrahim applied for, and Nettle JA gave, special directions to the jury as to the need for them to put the contents of media articles out of their minds for the duration of the trial.[3] His Honour also made a suppression order.[4] No application to dismiss the jury was made and the trial of Mr Ibrahim continued. He was convicted of manslaughter on 17 February 2006. It can be inferred from the jury’s verdict that the jury were unable to exclude the possibility that Mr Ibrahim was provoked to kill Mr Zayat.[5] It follows that whilst the publication of the offending words in the graphic caused some disruption and inconvenience, it did not cause any actual prejudice to the trial of Mr Ibrahim.
[3]Transcript of Proceedings, R v Ibrahim (Supreme Court of Victoria, Nettle JA, 10 March 2006) 1.
[4]Transcript of Proceedings, R v Ibrahim (Supreme Court of Victoria, Nettle JA, 7 February 2006) 488.
[5]R v Ibrahim [2006] VSC 96, [38].
Mr Blunden’s evidence was that he was not on duty on the night of 6 February 2006 and had no personal knowledge of the graphic prior to its publication.
Relevant legal principles
It is a contempt of court to publish something which has “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case” or a “real and definite tendency to prejudice or embarrass pending proceedings”.[6] Proof of an actual intention or purpose to interfere with the administration of justice is unnecessary.[7] Where a contempt of court is constituted by the publication of a newspaper article, the editor can be held guilty of contempt even if he or she had no personal knowledge of the article.[8]
[6]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370, 372 (“McRae”); Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, 56, 99, 133, 166 (“BLF”).
[7]McRae (1955) 93 CLR 351, 371; BLF (1982) 152 CLR 25, 56; A-G (NSW) v John Fairfax & Sons Pty Ltd (1985) 6 NSWLR 695, 708-9.
[8]R v David Syme & Co Ltd [1982] VR 173, 178 (“David Syme”).
In this case, as evidenced by HWT’s and Mr Blunden’s guilty plea, there was no issue that the publication of the offending words constituted a contempt of court. Those words had a tendency to interfere with the right of Mr Ibrahim to a fair trial by impugning his defences of self-defence and provocation.
In considering whether to punish a contemnor and, if so, the nature of that punishment, the considerations that a court will take into account include the seriousness of the offence, the circumstances of the offence, any prior convictions for contempt, and the importance of both specific deterrence of the contemnor from committing such offences and general deterrence of such offences.[9] Other matters which may be significant include the intention and “culpability” of the contemnor,[10] whether any harm was actually caused by the contempt,[11] the existence or otherwise of any system in the relevant organisation for the prevention of the contempt,[12] whether legal advice was sought before publication,[13] the general nature and purpose of the publication (including factors such as the extent to which the publication aspires towards “seriousness” as opposed to sensationalism and the standard of its journalism)[14] and whether the respondent has pleaded guilty, apologised and offered to pay costs. However, it is not necessary to punish a contemnor. In some circumstances, the prosecution itself, the burdens of the trial, the published findings of the court and an order for costs will be adequate to vindicate the public interest.[15]
Seriousness of offence, lack of intent and no actual harm
[9]R v Nationwide News Pty Ltd (Unreported, Supreme Court of Victoria, Gillard J, 18 February 1998) 6.
[10]David Syme [1982] VR 173, 178; DPP (NSW) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, 741.
[11]R v Nationwide News Pty Ltd (Unreported, Supreme Court of Victoria, Gillard J, 18 February 1998) 10.
[12]David Syme [1982] VR 173, 180, 182.
[13]DPP (Cth) v United Telecasters Sydney (Ltd) (in liq) (1992) 7 BR 364, 374.
[14]David Syme [1982] VR 173, 180.
[15]DPP (NSW) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, 742.
It was common ground that there was no intent to cause any harm to the trial of Mr Ibrahim and that no harm was actually caused. The contempt was neither defiant nor reckless.
The Solicitor-General submitted that the offence in this case was serious, as the contempt had a tendency to prejudice a murder trial. In response, Mr Houghton submitted that all contempts are serious but that, having regard to the particular circumstances of this case, this was a relatively less serious contempt.
The publication of an article which implies that the deceased was a victim of a gangland killing during the trial of the person who is accused of the deceased’s murder and who has pleaded not guilty and seeks to rely on the defences of self-defence and provocation, is a serious contempt of court. The fact that, as events transpired, the contempt did not have serious adverse consequences for the trial, does not lessen the seriousness of the contempt. However, the lack of intention and the absence of actual harm are important mitigating factors.
Circumstances of offence
The circumstances in which the graphic came to be published are set out earlier in this judgment. Mr Houghton submitted that there was a detailed system in place for avoiding contempts and preventing the error that led to the contempt and that the failure was a result of human error in circumstances where the publication process was unusually busy and subject to tight time constraints. He also submitted that the graphic does not constitute a sensational publication about the trial of Mr Ibrahim designed to boost the circulation of the Herald Sun at the expense of Mr Ibrahim receiving a fair trial. He submitted that these circumstances, taken as a whole, constituted a mitigating factor in relation to the punishment, if any, that should be imposed for the contempt.
I accept that the circumstances in which the offending words were published and the contempt thereby committed were unusual. If Mr Condello had been shot at 10.00am on 6 February 2006 rather than at 10.00pm, there would have been more time for all of the articles to be checked carefully and for detailed legal advice to be obtained. However, it is a fact of life that newsworthy events can occur throughout the day and night. Decisions about what to publish and when to publish are made by the media based on commercial and other considerations (including public interest considerations) of their own choosing. If circumstances arise where there is insufficient time to thoroughly check an article to ensure it does not constitute a contempt, infringe a suppression order or breach any other law, it lies in the hands of the media to defer publication until such checks are carried out. Pushing ahead with self-imposed deadlines in the knowledge that the necessary checks have not been completed can hardly be a mitigating factor. Obviously enough, where there is a conflict between compliance with a self-imposed deadline and compliance with the law, the former must give way to the latter. Where a media group knows that compliance with a publication deadline for an article will prevent it from carrying out its usual procedures for guarding against a contempt of court or some other offence, and it deliberately chooses to press ahead with the publication of the article, any resulting contempt will be viewed very seriously by the courts even if no actual prejudice results for any particular trial.
In this case, due to the pressures that obtained on the night of 6 February 2006, no‑one at HWT carried out the very simple and very quick task of checking the electronic database. Had this step been performed, it is likely that HWT would have been alerted to the fact that there was a murder trial on foot in respect of the death of Mr Zayat – the very subject matter of the offending words in the graphic. It is likely that this vital information would have been passed on to HWT’s lawyers who would have given advice that would have avoided the commission of the contempt.
The contempt in this case was caused by human error rather than by a deliberate pressing ahead with publication knowing that proper checks for avoiding contempts of court and other offences had not been completed. I accept Mr Houghton’s submission that the error may have taken place because the graphic in its entirety, other than the additional words relating to Mr Condello, had previously been published on 1 April 2004 without any adverse consequences. Of course what had changed since 1 April 2004 was that Mr Ibrahim was on trial on a charge of murdering Mr Zayat. HWT’s editorial staff on duty on the night of 6 February 2006 were not aware of that crucial fact due to their failure to check the electronic database. While that failure was inadvertent, it represents a serious departure from HWT’s own standard procedures for guarding against contempts of court and other breaches of the law.
System for prevention of contempt
There was evidence of a detailed system in place at the time of the publication of the graphic for avoiding contempts. The Solicitor-General accepted that such a system existed but submitted that the system failed in this instance.
The existence of a system for avoiding contempts is an important mitigating factor in this case. The weight to be given to this factor, however, is considerably diminished by the fact that it was not effectively complied with. A simple and fundamental procedure, namely the checking of the electronic database, was not undertaken due to human error. Another procedure, namely obtaining legal advice prior to publication, was compromised by the failure to check the database. The issue of legal advice is discussed further below.
Legal advice
It is often said that, if the contemnor obtained legal advice before publishing the offending material, that is a mitigating factor in relation to punishment for the contempt. In this case, the only evidence about obtaining legal advice in relation to the graphic was set out in Mr Johnston’s affidavit as follows:
I telephoned one of HWT’s external legal advisors, Mr Justin Quill of Corrs Chambers Westgarth to obtain legal advice in relation to the graphic. The usual practice is to send copy to HWT’s legal advisors but because of the time pressures, I telephoned Mr Quill and read the graphic to him over the telephone. I was not aware that Nicholas Ibrahim was relying on self defence in his trial for the murder of Housam Zayat. I am informed by Mr Quill and verily believe that he also did not know Nicholas Ibrahim was relying on self defence in his trial for the murder of Housam Zayat. Mr Quill told me to make some changes to the graphic before it was published. I made those changes.
The Solicitor-General accepted that legal advice had been sought, but submitted that it was unclear precisely what advice was sought or given. Mr Houghton submitted that HWT’s reliance on legal advice which it had received was a mitigating circumstance. He acknowledged that there is no detailed evidence about precisely what advice was sought or received in relation to the graphic, and he informed me from the bar table that he had sought instructions on the matter but that the relevant people could not recall the details of the advice sought on 6 February 2006. He conceded that it was not clear from the evidence whether any advice was sought in relation to the offending words in the graphic.
The weight to be given to the receipt of legal advice as a mitigating factor will be affected by, among other things, the extent to which the evidence before the Court discloses the nature of the advice that was sought and given and the circumstances in which it was sought and given. If a respondent baldly deposes to having sought and received legal advice before publication, it is difficult to give significant weight to that evidence because the court will not know whether the advice touched on contempt issues, whether the discussion with the lawyer lasted 30 seconds or 30 minutes, whether the lawyer actually sighted the relevant item, whether substantial alterations were made to the item after the lawyer advised on it without further reference to the lawyer, and so on. To have significant weight, details of the advice must be put into evidence.[16] The instructions given and the legal advice obtained are obviously subject to legal professional privilege and a respondent has a choice whether to waive privilege by giving evidence of these matters. However, a respondent who asks the court to be lenient on account of the fact that legal advice was obtained whilst maintaining privilege and not disclosing to the court what advice was sought and given and how this related directly to the item that constituted the contempt cannot complain if the court does not give this consideration any significant weight.
[16]Details of the legal advice received were provided to the court by an affidavit of the legal adviser in R v Thomson Newspapers Ltd [1968] 1 WLR 1, 5 and by an affidavit of the news editor in R v Australian Broadcasting Corporation [1983] Tas R 161, 178.
The parties have not referred me to any cases which are inconsistent with the above view. Mr Houghton referred me to Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liq).[17] In that case, the New South Wales Court of Appeal accepted that reliance on legal advice was a mitigating factor in relation to penalty. The contemnor had taken steps on legal advice to attempt to disguise the identity of an accused in a program that it broadcast, as there was a court order extant prohibiting the broadcast of material that identified the accused. The details of the advice are not apparent from the judgment, but counsel for the DPP conceded that the contemnor had been guided by legal advice.
[17](1992) 7 BR 364, 374-6.
In Attorney-General (NSW) v Willesee, Moffitt P and Mahoney JA made comments suggesting that it is not enough for a contemnor to have sought legal advice – additionally, the advice must be fully and honestly passed on to the relevant editorial staff, and properly and effectively obtained in the sense that the relevant material was put before the lawyer.[18]
[18][1980] 2 NSWLR 143, 154 [27] (Moffitt P), 166 [71] (Mahoney JA). See also A-G (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374, 390.
In R v Australian Broadcasting Corporation Ltd,[19] the ABC broadcast pictures of a man arrested for murder being taken handcuffed into the courthouse after receiving erroneous legal advice that this would not constitute a contempt of court. It appears that the advice was obtained over the telephone and that the solicitor did not see the film sequence to be shown. The Supreme Court of Tasmania was given details of the solicitor’s advice and the solicitor’s reasons. Neasey J commented: “It is not for the court to criticise in themselves the nature of the briefing of the solicitor or the advice given, but insofar as the taking of legal advice is put forward as a circumstance of mitigation, it need only be said that both aspects were inadequate”.[20]
[19][1983] Tas R 161.
[20][1983] Tas R 161, 178.
In light of the lack of specificity in Mr Johnston’s affidavit, Mr Houghton’s submission that due to human error, HWT’s electronic database was not checked, and the fact that the offending words were left unchanged from their first publication on 1 April 2004 notwithstanding that there was a murder trial on foot in relation to the death of Mr Zayat on 6 February 2006, I am not satisfied that any legal advice was sought or given on the offending words as distinct from other items of the graphic. Accordingly, I do not give much weight, as a mitigating factor, to the evidence in this case that legal advice was sought and obtained prior to the publication of the offending words.
Guilty plea, apology and agreement to pay solicitor-client costs
The respondents’ guilty plea, their unqualified and unreserved apology and their expression of sincere regret regarding the publication of the offending words are all important mitigating factors in this case.
The Solicitor-General also informed me that HWT had agreed to pay the Crown’s costs on a solicitor-client basis. I have taken that fact into account in considering what penalty, if any, should be imposed.
Prior convictions for contempt
The parties informed me that Mr Blunden does not have any prior convictions for contempt and that HWT has four such prior convictions. The Solicitor-General submitted that the prior convictions are relevant to specific and general deterrence. Mr Houghton submitted that as a mass media publisher which has been publishing in Victoria since 1840, HWT has a proud record of only four convictions for contempt of court.
The four prior convictions are set out in R v Pacini,[21] Attorney-General (Vic) v Gordon,[22] R v Herald & Weekly Times Ltd[23] and Registrar v Nationwide News Ltd.[24] The circumstances of these prior convictions differ from the present case. The first related to the publication of a photograph of a man under arrest, the second related to publication of prejudicial material about an accused who was then on trial, and the third and fourth related to breaches of suppression orders. In the first and fourth cases, it was held that the contempts were unintentional. HWT was fined $25,000 in the fourth case. The second case involved the discharge of the jury on the twenty-first day of trial and HWT was fined $8,000. In the third case, the contempt was described as serious and HWT was fined $15,000 and the editor $1,000.
[21][1956] VLR 544.
[22](Unreported, Supreme Court of Victoria, Brooking J, 12 July 1985).
[23](Unreported, Supreme Court of Victoria, Harper J, 15 April 1996).
[24](2004) 89 SASR 113.
I accept Mr Houghton’s submission that HWT has had few convictions for contempt relative to the lengthy period that it has been a publisher. This was recognised by Gray J in Registrar v Nationwide News Ltd where his Honour referred to the “relatively unblemished record for offences of this nature”,[25] and by Harper J in R v Herald & Weekly Times Ltd.[26]
[25](2004) 89 SASR 113, 123 [48].
[26](Unreported, Supreme Court of Victoria, Harper J, 15 April 1996) 9.
Deterrence
The Solicitor-General relied on the prior convictions of HWT for contempt in submitting that in the present case, there is a need for specific deterrence of HWT from committing further contempts. She also submitted that the Court should take into account general deterrence considerations, including the need to ensure the preservation of public confidence in the administration of justice. She submitted that general deterrence will not be effective if other media organisations become aware that HWT had accepted it was guilty of contempt and then had no conviction recorded against it.
Mr Houghton accepted that penalties must reflect specific and general deterrence considerations. He submitted that specific deterrence was not a significant factor in this case because HWT was conscious of the need for care, it has procedures in place to prevent contempts and the likelihood of repetition of this type of offence is remote.
Notwithstanding HWT’s relatively unblemished record and its systems for avoiding contempts, the penalty to be imposed by the Court in this case should reflect an element of specific deterrence because there was a serious contravention of HWT’s systems for avoiding contempts. Although, in this case, the contravention did not in fact prejudice the trial of Mr Ibrahim, a similar contravention in the future could have very serious prejudicial consequences for the administration of justice.
The penalty to be imposed in this case should also serve as a general deterrence for other media groups. The media need to be reminded that they must not only have appropriate systems in place to avoid contempt, but they must ensure compliance with those systems in all cases, even when pressures caused by publishing deadlines are acute.
Relevance of Sentencing Act
Mr Houghton submitted, in reliance on Rich v Attorney-General (Vic),[27] that in exercising its discretion about penalty, this Court may have regard to some provisions of the Sentencing Act 1991 (Vic). In Rich, Winneke P, with whom Callaway and Buchanan JJA agreed on this point, commented:[28]
I cannot see why the fact that the Court is exercising a summary jurisdiction under O.75 of the Rules should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence. I can understand why the nature of a criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly would this be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders might be seen to be inconsistent with the court’s power to commit for contempt of court. Because the power to commit for contempt has always been regarded as a power to commit for a “fixed term”, it may well be that the legislative discretion given to courts to suspend sentences and to fix “minimum terms” are also inconsistent with the exercise of the power …
However, in my view, there can be no reason why provisions such as s.15 of the Sentencing Act do not apply to sentences imposed for contempt of court. That provision is clearly of general application and directs, for obvious administrative purposes, the order in which sentences of imprisonment are to be served where the sentence is imposed upon a person already undergoing a term of imprisonment.
[27](1999) 103 A Crim R 261; [1999] VSCA 14 (“Rich”).
[28](1999) 103 A Crim R 261; [1999] VSCA 14, [46]-[47].
Mr Houghton submitted that pursuant to ss 7(1)(f) and 8(1) of the Sentencing Act, if I decided to impose a fine on HWT, I should not record a conviction. Section 7(1)(f) provides that if a court finds a person guilty of an offence, it may “with or without recording a conviction, order the offender to pay a fine”. Section 8(1) provides:
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c)the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
The Solicitor-General did not make any specific submissions on whether the Sentencing Act could be called in aid in sentencing for contempt of court. She did submit, however, that in this case, I should record a conviction and impose a fine in relation to HWT.
I accept that the Sentencing Act can be relevant to sentencing in relation to contempt proceedings under Order 75 of the Rules, such as the present proceeding, although not all of its provisions are necessarily relevant.[29] Provisions of the Sentencing Act that have been held to apply in the context of a proceeding for contempt of court include ss 11 to 14 (fixing of non-parole period),[30] 15 (order of service of sentences),[31] 16 (sentences – whether concurrent or cumulative),[32] and 27 to 31 (suspended sentences of imprisonment).[33]
[29]Rich (1999) 103 A Crim R 261; [1999] VSCA 14, [46]-[47].
[30]DPP (Vic) v Johnson (2002) 6 VR 235, 237 [7].
[31]Rich (1999) 103 A Crim R 261; [1999] VSCA 14, [47]; Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1, 6 [18] (“Varnavides”).
[32]DPP (Cth) v Haunga (2001) 4 VR 285, 291-2 [16] (dealing with s 16(4)); DPP (Vic) v Johnson (2002) 6 VR 235, 236 [3]; Law Institute of Victoria Ltd v Nagle [2005] VSC 47, [37] (dealing with s 16(1)).
[33]National Australia Bank Ltd v Juric (No 2) [2001] VSC 398, [58]; National Australia Bank Ltd v Juric (No 3) [2002] VSC 86, [69]. In Varnavides (2005) 12 VR 1, the Court of Appeal did not expressly decide whether ss 27 to 31 apply (at 8-9 [27]-[30]).
In McKinnon v Adams (No 2),[34] Bongiorno J held that it is inappropriate to apply Division 4 of Part 3 of the Sentencing Act, which deals with fines, to fines for contempt. In so holding, his Honour commented:[35]
Each of the provisions enabling a maximum fine to be calculated proceeds upon the basis that there will be a statutory provision which fixes the maximum number of months imprisonment that may be imposed so as to enable the calculation of an appropriate fine to be made. In the case of contempt of court there is no maximum term of imprisonment fixed by law and accordingly s.109 of the Sentencing Act 1991 provides no appropriate basis for calculation of the quantum of the fine. I conclude that where a fine is to be imposed for a contempt of court, the provisions of the Sentencing Act do not apply.
[34][2003] VSC 502 (“McKinnon”).
[35][2003] VSC 502, [39].
Most recently, in Varnavides v Victorian Civil and Administrative Tribunal, the Court of Appeal referred to Rich and made the following comments:[36]
Because contempt is a distinctive offence attracting remedies which are sui generis, the Sentencing Act 1991 does not apply in cases of punishment for contempt in the same way as it applies to sentencing for other criminal offences. …
Nevertheless, contempt of court is a serious offence and should be approached, as far as possible, in a way which is consistent with that adopted when dealing with criminal conduct generally. There is no reason to suppose that the provisions of the Sentencing Act were intended to fetter the unlimited jurisdiction of the Supreme Court to punish for contempt of court. But, obviously, the Sentencing Act deals with a range of matters of principle or practical importance to the imposition and operation of sentences – matters, including, for example, the very practical question of the order in which sentences are to be served – and, as a matter of commonsense, a Supreme Court judge would have regard to them when dealing with a case of contempt.
[36](2005) 12 VR 1, 6 [17]-[18].
All of the provisions of the Sentencing Act which are described in paragraph 45 of this judgment are contained in Part 3 of that Act.[37] Sections 7(1)(f) and 8(1) of the Act, which Mr Houghton submitted can be applied by me in the present case, are in Division 1 of Part 3 of the Act. That Division is headed “General” and sets out general principles relating to sentencing.
[37]Section 109 of the Sentencing Act, which is referred to in McKinnon and which prescribes a penalty scale, is not itself in Part 3 of the Act, but is referred to in s 52 of the Act, which provides that reference should be had to s 109 for the amount of a fine where no amount is prescribed. Section 52 is in Part 3 of the Act.
This Court can have regard to some of the provisions of s 7(1) (such as paragraphs (a), (c), (f), (h) and (j)) and all of the provisions of s 8 of the Sentencing Act in the context of a proceeding for contempt under Order 75 of the Rules. The provisions I have referred to set out general options and principles relating to sentencing and there is no reason why they cannot be called in aid by this Court in sentencing of persons who are guilty of contempt in the same way as the other provisions of the Sentencing Act referred to in paragraph 45 of this judgment. In forming this view, I have considered Bongiorno J’s comments in McKinnon, including his Honour’s statement that “where a fine is to be imposed for a contempt of court, the provisions of the Sentencing Act do not apply”. That statement must be understood in the context in which it was made in his Honour’s judgment. It was made in relation to whether provisions of the Sentencing Act dealing with maximum fines are applicable in determining the quantum of a fine to be imposed for a contempt, and did not deal with the more general powers of a court in relation to sentencing orders (which can include orders in relation to fines) which are contained in s 7 of that Act. The statement should not be taken as a “blanket” exclusion of the provisions of the Sentencing Act in every case where a fine is to be imposed for contempt.
Accordingly, I am of the view that I can have regard to the matters referred to in s 8 of the Sentencing Act and can exercise my discretion in the manner authorised by s 7(1)(f) of that Act.
Section 8(1)(a) refers to the nature of the offence, which I have already considered. Section 8(1)(c) refers to the impact of the recording of a conviction on the offender’s economic or social well-being or his or her employment prospects. No evidence was given on this issue, although it can be inferred that the respondents will be generally worse off if a conviction is recorded than if a conviction is not recorded. Section 8(1)(b) refers to the character and past history of the offender. No specific evidence was presented in relation to Mr Blunden other than that he had no prior convictions for contempt of court. In relation to HWT, in addition to evidence about its prior convictions for contempt of court, which I have already considered, Mr Houghton relied on evidence of HWT’s charitable and other community-focused activities. He submitted that this evidence should weigh in HWT’s favour in terms of sentencing. I have taken this evidence into account.
Decision
The Crown did not seek the recording of a conviction or imposition of a fine in relation to Mr Blunden, and the respondents submitted that this was an appropriate course. However, in relation to HWT, the Solicitor-General submitted that it was appropriate that a conviction be recorded and a fine imposed, albeit at the lower end of the spectrum having regard to previous cases where fines have been imposed for contempt. She submitted that it was appropriate to record a conviction against HWT in the interests of specific and general deterrence. In response, Mr Houghton submitted that neither a conviction nor a fine should be imposed in relation to HWT, but that if a penalty were imposed, it would be appropriate to impose a fine only with no conviction being recorded.
In relation to Mr Blunden, I have had particular regard to the fact that he was not on duty on the night of 6 February 2006 and that he had no knowledge of the graphic prior to its publication, to the unqualified apology he offered to the Court through Mr Houghton at the outset of the hearing and in his affidavit, and to his plea of guilty. I also take into account that Mr Blunden, who is now the managing director of HWT, was in Court throughout the hearing, which is an important indication of the sincerity of his apology and his genuine remorse. In all the circumstances, it is appropriate that no conviction be recorded in relation to Mr Blunden and no other penalty be imposed on him.
In relation to HWT, in light of the strong mitigating factors discussed above, I gave serious consideration to adopting the course urged upon me by Mr Houghton, namely, imposing a fine without recording a conviction pursuant to s 7(1)(f) of the Sentencing Act. In the end, I have decided that a conviction should be recorded and a fine imposed for the reasons discussed below.
Although, at the time of publication, HWT had in place a detailed system for preventing the commission of contempts, the system was not effectively complied with and consequently failed to prevent the contempt from taking place. The circumstances of publication, involving as they did tight time constraints in response to the shooting of Mr Condello at approximately 10pm on 6 February 2006, explain the breakdown in the system but do not excuse it. The process of checking the electronic database, which, through human error, was not undertaken, was a simple and quick step that is of fundamental importance. The undertaking of this step would not have been disruptive and would probably have prevented the contempt. The failure to undertake it, although inadvertent, undermined the utility of obtaining legal advice. As I have said in paragraph 21 of this judgment, self-imposed publishing deadlines which create an environment that precludes effective deployment of measures to avoid contempts cannot be then used to excuse the failure of those measures and to create potent mitigating circumstances.
In this case, the contempt was serious, as it took place while a criminal trial was on foot. The fact that publication of the offending words did not actually cause any harm to the trial was fortuitous. There is also a need for general deterrence and, to a lesser extent, specific deterrence for the reasons set out in paragraphs 40 and 41 of this judgment.
In relation to the quantum of the fine to be imposed on HWT, I accept the submission of the Solicitor-General that the fine should be at the lower end of the scale. Having regard to the strong mitigating factors, and other relevant circumstances of this case such as HWT’s valuable community work and the relatively low level of specific deterrence that is required, I fix the fine at $10,000.
As HWT has agreed to pay the applicant’s costs on a solicitor-client basis, it is appropriate for me to make an order to that effect.
Proposed orders
Subject to any submissions from the parties, I propose to make the following orders:
(a) each of the respondents is adjudged guilty of contempt of court in respect of the publication of a graphic accompanying an article on page 17 of the 7 February 2006 edition of the Herald Sun newspaper that referred to the death of Housam Zayat;
(b) the first respondent is convicted of such contempt of court;
(c) no conviction be recorded against the second respondent for such contempt of court and no penalty be imposed on him;
(d) the first respondent is fined $10,000; and
(e) the first respondent pay the applicant’s costs of the proceeding on a solicitor-client basis.
I will hear from the parties on the precise form of order.
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