R v Vasiliou (No 2)

[2012] VSC 242

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2011 5566

THE QUEEN	Applicant
v
ANDREW VASILIOU	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 21-22, 25, 31 May and 7 June 2012
DATE OF JUDGMENT:	8 June 2012
CASE MAY BE CITED AS:	R v Vasiliou (No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 242

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CONTEMPT – Sentence – Intention to interfere with the due administration of justice – Threat of violence for the purpose of improperly influencing the decision of the presiding judge – Threat of violence for the purpose of intimidating a party – Relevance of alleged prior convictions for other offences – Relevance of physical and psychiatric conditions – Sentence of four months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H. J. Langmead SC with Ms F. K. Forsyth	Victorian Government Solicitors Office
For the Respondent Until 25 May 2012 On 31 May 2012 From 7 June 2012	In person Mr A. Chernok In person	Doogue & O’Brien

HIS HONOUR:

1. Andrew Vasiliou, on 25 May 2012, after a three day trial, I found you guilty of contempt of court.[1]  There is no maximum penalty for contempt of court.

   [1][2012] VSC 216. This sentence should be read with the findings set out, and reasons given, in that judgment.

1. The contempt of which you have been found guilty occurred at approximately 2.22pm on 24 August 2011, when you sent a three page email (“the email”) to, amongst others, one of Vickery J’s associates and the trustee of your bankrupt estate, Mr Marchesi. The email was addressed to Vickery J.  You sent the email shortly after argument concluded in an application where, amongst other things, the trustee of your bankrupt estate sought an order restraining you from issuing, without leave, any other proceeding or application in relation to the subject matter of a proceeding commenced by Optquest Pty Ltd on 29 October 2010. You sent the email while judgment in the application was reserved.

1. The circumstances of the contempt are set out in full in the judgment in which I found the contempt proven.  I will not repeat them. The relevant parts of the email are also set out in the judgment.  I will not set them out again.  It is sufficient to note that in the email you:

-expressed regret that you had not previously killed the trustee of your bankrupt estate;

-threatened Vickery J that if he dared to make orders restraining you from commencing any proceedings without leave, it would be “under [your] discretion … to start killing people instead of suing them in courts”;

-asserted that it was either the Court’s job or your personal job to deliver justice to you;  and

-warned the trustee of your bankrupt estate that he would “pay the price” if he did not change the approach he had taken to date.

1. You sent the email intending to interfere with the due administration of justice by intimidating Mr Marchesi in his capacity as a party opposed to you in litigation.  Further, you sent the email intending to interfere with the due administration of justice by threatening Vickery J that if he dared to make a particular order adverse to you, then you might start killing people.

1. The contempt you committed is a serious contempt.  You have not apologised and you have shown no remorse.  While the absence of any apology or any remorse cannot be a matter of aggravation, your lack of apology or remorse means that you are not entitled to the significant benefits to which an apology and a remorseful attitude would otherwise have entitled you.

1. The way in which you conducted your trial before me is also a relevant factor.[2] You made entirely unfounded serious allegations of impropriety against numerous people during the course of this proceeding, including your own former counsel, witnesses, solicitors, court staff and judges who have made orders with which you are dissatisfied. Further, during the course of your evidence you did not resile from what you said in the email. Specifically, you said it remained to be decided as to whether you would kill somebody,[3] and that if Mr Marchesi continued to “behave in a criminal way … then the end thing is to kill him, and that’s what’s going to happen in the end”.[4]

   [2]Cf R v Slaveski(sentence) [2012] VSC 7, [22] (Whelan J).

   [3]T91.12 - .14.

   [4]T63.3 - .6.

1. You are 61 years of age.  You were once a successful businessman.  On the plea hearing, you tendered references attesting to your previous good character.  You also tendered medical reports which disclosed significant physical health problems associated with your heart and a poorly controlled diabetic condition.  Additionally, the medical material you tendered discloses that you have suffered from, and probably continue to suffer from, psychiatric conditions involving anxiety and depression, with some psychotic features and paranoid ideas.  As Dr Gouras puts it, you have “very poor insight”.

1. The Crown conducted the plea hearing on the basis that prior convictions for offences other than contempt are not relevant in contempt proceedings.[5]  However, upon the tendering of your character references, the Crown tendered a criminal history in which you are recorded as having prior convictions for resist police, theft, unlawful assault and assault police.  You dispute being convicted of any of these offences.  In the end, it is not necessary for me to resolve this dispute.  For the purposes of this sentence, I am prepared to proceed on the basis that, prior to sending the email, you were a person of basically good character.  Specifically, and consistently with previous authorities,[6] I do not propose to have any regard to the existence or otherwise of the prior convictions alleged by the Crown.

   [5]See R v Giscombe (1983) 79 Cr App R 79 at 84, where Lord Lane CJ said “in matters of this sort [contempt] the nature of a man’s criminal record is of no importance, unless of course that criminal record contains an offence similar to the one of which he has been found guilty by this Court”. See also, Scott v Evia [2007] VSC 15 [179] (Dodds-Streeton J). In the present case it was not submitted by the Crown that any of Mr Vasiliou’s alleged prior convictions were offences “similar” to the offence of contempt proved against him in this proceeding.

   [6]R v Giscombe (1983) 79 Cr App R 79, 84 and Scott v Evia [2007] VSC 15 [179].

1. General deterrence, specific deterrence and denunciation are all relevant sentencing considerations in this case.  I have also taken into account current sentencing practices – although only limited assistance can be gained from the sentencing dispositions given in the wide range of circumstances disclosed in other contempt cases.[7]

   [7]Cf Wood v Galea (1996) 84 A Crim R 274, 277-283; DPP v Johnson & Ors [2002] VSC 583, [56] (Osborn J). See further, for example, the differing facts and sentences in DPP v Johnson [2002] VSC 583; DPP v Paisley [2002] VSC 594; DPP v Johnson [2002] VSC 597; DPP v Sonnett [2002] VSC 596; Attorney-General for NSW v Whiley (1993) 31 NSWLR 314; Rich v Attorney-General for the State of Victoria (1999) 103 ACrimR 261; Wilson v Prothonotary [2000] NSWCA 23; R v Slaveski [2012] VSC 7 and Hannaford v HH (No 2) [2012] FCA 560.

1. In DPP v Johnson & Ors,[8] Osborn J[9] identified the following as matters of potential relevance in sentencing in contempt cases:

   [8][2002] VSC 583.

   [9]As his Honour then was.

“(a)the context of the proceedings including whether the contempt was committed in the course of a trial for serious criminal offences;

(b)the objective seriousness of the contempt including the actual consequences to the trial, and the implications of such contempt for the general administration of justice;

(c)the state of mind and intention of the contemnor including the reason (if any) for the contempt and the contemnor's intention as to the consequences for the trial;

(d)whether and if so when there has been an apology or public expression of contrition and acceptance of the Court's authority;

(e)the character and antecedents of the contemnor;

(f)general and personal deterrence;

(g)denunciation of contempt;  and

(h)the passage of time since the occurrence of the contempt.”[10]

[10]Ibid, [59].

1. So far as the first and last considerations identified by Osborn J are concerned, two things may be said.  First, your contempt does not involve the aggravating circumstance of having been committed in the course of a trial for serious criminal offences.  Secondly, unlike some cases where there has been a substantial passage of time, the passage of time in this case is of no great assistance to you.  This proceeding was issued only two months after your contempt was committed.  Such delays as have occurred thereafter have been due to your failures to attend Court and to applications you have made for adjournments.

1. As identified in s 5 of the Sentencing Act 1991, the purposes for which sentence may be imposed include punishing an offender to an extent and in a manner which is just in all the circumstances; deterring an offender or other persons from committing offences of the same or a similar character; establishing conditions within which it is considered by the Court that the rehabilitation of the relevant offender may be facilitated; and manifesting the denunciation by the Court of the type of conduct in which the offender engaged. While rehabilitation is ordinarily an important matter, there is nothing in the material in this case, or in the way in which you conducted this proceeding, which suggests that you have any particular prospects for rehabilitation so far as this matter is concerned.

1. Having regard to your health issues (both physical and psychiatric), I am prepared to accept that imprisonment is and will be more burdensome for you than might otherwise be the case.  Additionally, while there was little (if any) evidence linking your offending with your psychiatric condition,[11] I am prepared to accept that there should be some moderation of both general deterrence and specific deterrence in this case.[12]

   [11]See Pettiford v R [2011] VSCA 96, [29].

   [12]See R v Verdins (2007) 16 VR 269.

1. The Crown seeks an order that you pay the costs of this proceeding on a solicitor and client basis.  Such an order is commonly made in contempt cases where the contempt has been proved.[13]  In my view, the usual order for costs on a solicitor and client basis should be made in this case.  If I had had any doubt about that matter, such doubt was removed by the nature of the unfounded allegations made by you during the course of the trial, and the time that was taken in their pursuit.

   [13]Chan & Ors v Chen & Ors(No 3) [2007] VSC 52, [33].

1. For your crime, an immediate sentence of imprisonment is necessary. The Crown submits that the appropriate sentence in this case is in the range nine months to twelve months’ imprisonment. Remembering that the order for costs I will make against you also constitutes punishment, I think the Crown’s range is too high. You fall to be sentenced only for the contempt in respect of which you have been found guilty. You do not fall to be sentenced for any offence under ss 20 or 21 of the Crimes Act 1958. Taking all of the relevant circumstances into account, in my view, the appropriate penalty in this case is a term of imprisonment of four months. I declare that you have already served a period of 100 days in custody, and I direct that this fact be noted in the records of the Court as time already served under the sentence of four months’ imprisonment imposed today.

1. The orders that I will make are as follows:

(1)The respondent is adjudged guilty of contempt of court in that on 24 August 2011, when an application to which the respondent and Mr Brendan Marchesi were parties was reserved before Vickery J, the respondent sent an email addressed to Vickery J and copied to Mr Marchesi, containing statements which were intended to interfere with the due administration of justice by:

(i)intimidating Mr Marchesi in his capacity as a party opposed to the respondent in litigation;

(ii)threatening Vickery J that if his Honour made an order adverse to the respondent, then the respondent might start killing people.

(2)The respondent pay the applicant’s costs of and incidental to this proceeding, including reserved costs, on a solicitor and client basis.

(3)The respondent be committed to prison for a term of four months.

(4)It be noted in the records of the Court that the respondent has already served 100 days of the sentence referred to in order (3).