R v Michael (a pseudonym) (No 2) [2020] VSC 391 (26 June 2020)

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THE QUEEN (on the application of the Chief Examiner)	Applicant

v

AHMAD MICHAEL (a pseudonym)	Respondent

JUDGE:	CHAMPION J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2020
DATE OF SENTENCE:	26 June 2020
CASE MAY BE CITED AS:	R v Michael (a pseudonym) (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 391

CONTEMPT – Sentence – Examination under Major Crime (Investigative Powers) Act 2004 (Vic) – Contempt of the Chief Examiner – Refusal to answer questions put by the Chief Examiner – Reasonable excuse for refusing to answer questions not found – Apologised for refusal – Sentence of five months’ imprisonment – Two months be served cumulatively on the sentence presently undergoing.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F. Holmes	Office of the Chief Examiner

For the Respondent	Mr S. Moglia	Emma Turnbull Lawyers

1 On 8 April 2020, this Court found the respondent guilty of contempt pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). This finding followed a one-day trial on 19 December 2019, where the respondent contested the allegation of contempt. He conceded he had refused to answer questions asked by the Chief Examiner’s delegate (‘the Examiner’) on [redacted], but maintained he had a reasonable excuse for doing so.

2 These reasons concern the penalty to be imposed following the respondent being found to have committed the offence of contempt.

3 Section 49(1) of the Act creates the offence of contempt of the Chief Examiner. However, the Act does not specify any particular penalty or maximum penalty for such offending.

4 While noting that the Court’s sentencing power is at large, both parties contend that the five year maximum for like breaches under the Act[1] provides a useful comparator. Croucher J adopted this approach in R v QF,[2] and it has been similarly taken in other cases. I have taken a similar approach in R v Brigham[3] and R v Miles[4] and agree that this is the approach to be taken in the present case.

5 Both parties accept that the respondent’s offending warrants an immediate custodial sentence.

6 I have already detailed the background and circumstances of this case in R v Michael,[5] and will therefore only include a brief summary in these reasons.

7 The Chief Examiner issued three custody orders pursuant to s 18 of the Act requiring the respondent to attend to give evidence in relation to a series of armed robberies and attempted armed robberies. On [redacted], [redacted] and [redacted], the respondent was brought from prison to the Office of the Chief Examiner for the purpose of an examination. He was sworn on all three occasions.

8 On [redacted], the examination took place from the morning into the afternoon. The respondent did not refuse to give evidence on this occasion, but raised concerns with the Examiner about being absent from prison all day. The Examiner made a non-publication direction, though not on the basis of his expressed safety concerns.

9 On [redacted], the respondent was [redacted]. Before the Examiner, he raised concerns about the appearance created by this form of escort, as well as the fact that low-level prison staff appeared to have been aware of the examination. The Examiner indicated there would be a review into his transportation and amended the non-publication order to limit disclosure amongst prison staff. The respondent gave evidence on this occasion. The Examiner truncated the examination to allow the respondent to return to prison within a time that would accord with a urine testing event, and made a further non-publication order.

10 On the occasion of his transport on [redacted], the respondent [redacted]. The officers also attempted to take him to the protected prisoners waiting area. As a result of these incidents, the respondent initially refused to attend the examination, but did not persist with that refusal. At the examination, he raised his concerns with the Examiner, who amended the non-publication direction. However, the respondent subsequently refused to answer any further questions. On that same day, he was charged with contempt of the Chief Examiner.

11 At his trial on 19 December 2019, the respondent put forward a defence of reasonable excuse on the basis that he had fears for his personal safety. The parties did not call witnesses to give evidence, and the matter proceeded on the basis of written materials placed before the Court, supplemented by oral submissions. As such, the proceedings were conducted compactly and efficiently. On 8 April 2020, I found the respondent guilty of the charge of contempt, having found no objective basis for his fears.

12 The respondent was [redacted] years old at the time of his offending. In his early childhood, he migrated with his family to Australia from [redacted]. He grew up with [redacted] siblings and his parents worked as [redacted] to support the family. I note that the [redacted], which I discuss further below.

13 The respondent left school at around [redacted] years old, after completing [redacted]. He had difficulties with police from his teenage years. After leaving school, he sought out training and employment, and obtained work in [redacted].

14 He began drinking at around 13 or 14 years old, and then started smoking with peers. He otherwise does not have a history of using any other substances.

15 At the time of the contempt, the respondent was being held in a [redacted] adult prison, where very significant episodes of violence, including fatal violence, have occurred. While acknowledging this Court concluded there was no objective basis to his fears of threat or harm in R v Michael,[6] the respondent emphasises that, in this context, his fears were not wholly unfounded or irrelevant to the sentencing outcome.

16 The respondent indicates that he has found adult prison isolating and depressing, and he is regularly [redacted]. The Court is informed that he looks forward to reuniting with his family and plans to live with [redacted] upon his release from custody.

17 The respondent has a criminal history involving relatively serious examples of offending. Most recently, in [redacted] and at the age of [redacted], the respondent was sentenced in the County Court to four years imprisonment with a non-parole period of two years and four months for offences involving [redacted]. These were serious examples of offending committed by the respondent. At the time of being sentenced, the respondent had served [redacted] days of pre-sentence detention. Accordingly, as at the passing of the sentence today, he has been in custody for a substantial period. I was informed that his expected release date is in [redacted], with an exact date not yet determined.

18 Both parties referred to the case Wood v Stanton (No 5),[7] in which Dunford J identified a series of sentencing factors for contempt cases similar to the present. The applicant pointed to the following factors as being relevant:

19 These factors have been applied and adopted in many similar matters in Victoria.

20 The respondent referred to the following factors enunciated in Wood v Stanton (No 5) as weighing in his favour:

21 It is submitted that the respondent’s offending is relatively low in gravity, and reliance is placed on the following matters:

22 Further, it was submitted that the respondent falls into a lower level of culpability for his contempt. Reliance was placed on a report dated [redacted] by Mr [redacted], Consultant Psychologist, which was used for the purposes of the respondent’s charges previously heard in the County Court.

23 Mr [redacted] did not observe any concerning aspects regarding the respondent’s psychological condition and opined that he did not seem to possess an inherently anti-social character. He concluded that the respondent did not appear to be suffering from symptoms that met the clinical criteria for any major psychological disorder. He observed that the respondent was able to express appropriate victim empathy and genuine desires to move away from his past criminality, take up employment and return to his family, partner and positive friendship circle. At the plea, it was submitted that these positive signs support the proposition that the contempt does not demonstrate an entrenched or seriously grave contemptuous attitude towards authorities.

24 With respect to his conduct in the hearing before this Court, it is submitted that the respondent maintained a consistent position to that taken before the Examiner. It is contended that he appropriately conceded a number of alleged facts and circumstances and did not seek to abuse court processes for any ulterior purpose, such as causing delays. It is submitted that the hearing was concise, straight-forward and conducted efficiently and that this should weigh in his favour. Further, in the assessment of culpability, the respondent also relies on a number of matters concerning the circumstances of the examination, as discussed above.

25 Overall, it is submitted that the contempt fell into the lowest level of gravity, at the lower level of culpability.

26 With respect to the relative gravity of the offending, the applicant concedes the respondent conducted himself in a polite manner and did not seek to deliberately disrupt the hearing. However, it is contended that transcript of the three examinations show that the respondent was deliberately not answering questions to the best of his ability. It is submitted that the respondent was not open, candid and helpful before becoming apparently frightened for his safety and refusing to answer more questions. Rather, it is submitted that the respondent prevaricated, obfuscated and made no real effort to assist the Examiner and tell the truth before his refusal.

27 While noting that the gravity of the offending is not at the higher end of the spectrum, the applicant submits that it does not fall at the lowest end due to his refusal not being reasonable in the context of his being of little assistance overall.

28 In regards to the context of the refusal, the applicant notes there is no evidence of concerning behaviour by other prisoners towards the respondent. Further, it is contended that the refusal was communicated at the point in the examination where the Examiner was placing pressure on him to truthfully answer her questions. While acknowledging that his placement in a high security adult prison is an objective matter to be taken into account, it is submitted that the above factors detract from the respondent’s proposition that he had a genuine concern for his safety.

29 Further, the applicant submits that the seriousness of the contempt is to be assessed having regard to the statutory context in which the offending was committed. As stated in the second reading speech to the Major Crime (Investigative Powers) Bill, it is noted that the Chief Examiner’s ‘powers are designed to assist police in breaking the “code of silence” that often thwarts investigation of organised crime.’[9]

31 It is submitted that the respondent was summonsed to give evidence regarding organised crime offences which were very serious. While noting that his contempt was not aggravated by rude, aggressive or insulting behaviour, the applicant contends that the contempt was plainly contumacious. Further, it is submitted that the respondent accepts he was aware of the consequences of the contempt.

32 With respect to moral culpability, the applicant notes that while it is not high, it is at a much higher level than that suggested by the respondent. Referring to its submissions on the gravity of offending, it is contended that the transcripts from all three examinations make clear that the respondent made no real effort to assist the Examiner and that his refusal was simply a means to avoid divulging the information he knew.

33 With respect to the reasons for the contempt, it is noted that the respondent claimed he had a reasonable excuse for refusing to answer questions, on the basis of concerns for his own safety. The applicant submits that the refusal followed a series of questions about the circumstances of his role and knowledge in the alleged offending being enquired into. It is submitted that the respondent was given an opportunity to reconsider his refusal after a number of exchanges, declined to do so and was charged with contempt.

34 I note that, at the trial hearing, the respondent conceded he had refused to answer questions put to him by the Examiner during the third examination. However, he emphasised that such refusal should be considered in the context of the two previous examinations, in particular, the circumstances of his transfers from prison.

35 The applicant submits that the respondent’s reasons for his refusal were not consistent with his conduct or experience. Firstly, the respondent conceded that he received no threats, and there were no suggestions that other prisoners held suspicions about his movements. Further, as above, it is submitted that the respondent made no efforts after his second examination to use the ‘urine screen’ excuse to explain his whereabouts, instead telling fellow prisoners that he could not tell them where he had been. It is contended that this approach in and of itself would give rise to suspicion, was something of entirely the respondent’s own doing, and flies in the face of the respondent’s contention that he had real concerns for his safety. As such, it is submitted that the Court should accord little weight to the respondent’s stated reasons for his refusal in these circumstances.

36 In response to this submission, the respondent emphasised the difficulty for someone outside of his circumstances to fairly assess whether he should lie to other prisoners. It was contended that the respondent must decide for himself whether a lie would be protective or make things worse, especially as he had been observed by another prisoner before the third examination. As such, it is submitted that the Court cannot find that it was wholly unjustifiable for the respondent to not tell a lie suggested to him by the Examiner.

37 Further, the applicant rejects the assertion that the Examiner conceded that the conduct of the authorities in transporting the respondent to the second examination was out of the ordinary. Rather, it concedes that the Examiner considered the respondent’s subjective concerns about the manner of transportation and how it may lead other prisoners to question his whereabouts. The applicant submits that the Examiner’s decision to truncate the second examination was to assist in allaying such concerns.

38 In regards to the consequences of the contempt, it is contended that it is not known, nor does the Court need to determine, what precise impact the respondent’s evidence would have had on the Chief Examiner’s investigation.[12] It is noted that, in order to summons the respondent, the Chief Examiner had to be satisfied that it was reasonable to do so upon consideration of the evidentiary or intelligence value of the information sought to be obtained. It is contended that the respondent’s refusal to give evidence about serious organised crime offences had a tendency to significantly interfere with the administration of justice.

39 Lastly, it is noted that the only relevant antecedents in contempt cases are antecedents for contempt, or very similar conduct. It is acknowledged that the respondent has no such antecedents. Contrary to the respondent’s submissions, the applicant submits that he has not provided an apology. Further, it is submitted that the respondent has supplied no evidence or remorse, contrition or good character.

40 The respondent refers to the cases of QF,[13] Brigham[14] and Miles[15] as providing some guidance in the present matter. While noting that the respondent did not plead guilty as did the contemnors in Brigham and Miles, in my opinion, his contempt is broadly comparable in nature and seriousness to those seen in these previous cases. Furthermore, in the respondent’s case, the refusal involved giving a reason, which was respectfully communicated to the Examiner. It is also notable that the respondent is significantly younger than Brigham and Miles, who were aged 26 and 27 years respectively. In all the circumstances, the respondent submits that that a sentence in the order of months, not years, would be appropriate.

41 The applicant also provided the Court with a table of relevant cases which, in addition to the above cases, referred to the sentences imposed in R v Hopkins,[16] R v Ford,[17] R v Murray,[18] R v DF (No 2),[19] R v Debono,[20] and Chief Examiner v Camilleri[21] as examples of current sentencing practices. At the plea, it was acknowledged that these comparable cases are effectively in line with the respondent’s submission regarding penalty. I have examined these cases.

42 Section 5(1) of the Sentencing Act 1991 provides a list of purposes for which sentences may be imposed. These purposes apply to sentences imposed for contempt and I have had regard to them in determining the sentence to be imposed in this case.[22] A particular purpose for which a sentence may be imposed is to punish the offender in a manner which is just in all the circumstances. I must approach the task by passing a sentence that is just and proportionate to the offending, taking into account the offending, and the circumstances of the offender.

43 The applicant contends that deterrence and punishment are critical sentencing factors for this offence. It notes that authorities emphasise the need for salutary punishment to ensure that the regime provided for in the Act does not become a ‘toothless paper tiger’.[23]

44 Reference is made to the following remarks of the Court of Appeal in Murray v The Chief Examiner:

45 Brief submissions were advanced about the factors of specific deterrence and protection of the community. I have considered these factors in the context of the present offending and the circumstances of the respondent.

46 I am not of the opinion that specific deterrence and community protection are significant factors in assessing the appropriate sentence to be imposed on the respondent in this matter. There is no material before me to suggest that the respondent is likely to be called before the Chief Examiner again. As such, there appears little risk the respondent might commit the same, or similar, offending again. Further, I do not think that the sentence which I will impose requires a significant component directed towards the protection of the community.

47 Applying the principles set out in s 5 of the Sentencing Act, a court must not impose a sentence more severe than that necessary to achieve the purpose or purposes for which the sentence is to be imposed. I have had regard to this principle in determining the sentence in this matter.

48 As is known, the Victorian community is currently experiencing the COVID-19 pandemic, which has had significant impacts on many aspects of the community. At the plea, the respondent indicated that there had already been [redacted] episodes, albeit only for a couple days [redacted], of complete lockdown in his prison in relation to the virus. As such, whilst there is currently no reported presence of the virus in prisons, it is contended that there is a risk of further lockdowns and that the respondent lives with the stress of being vulnerable, in the sense of being in a controlled environment where he is not able to control his own movements and circumstances. I note he does not submit that he has a special vulnerability, as a young man in good health.

49 The Court was informed that, in the current circumstances, the respondent maintains contact with his partner and family remotely via Skype calls. It was also submitted that the [redacted] program he was engaging in has been suspended for the last two months as a result of COVID-19, and that the suspension will likely continue for some time. The respondent further indicates that his involvement in a ‘[redacted] course has also ceased in the current climate. These factors indicate that the time he is spending in custody is more onerous than it otherwise would have been had there not been the impacts of the pandemic restrictions. I take those circumstances into account.

50 As discussed above, offending pursuant to s 49 of the Act is to be regarded seriously and must be deterred. It is clear that general deterrence and denunciation are significant factors in the sentencing calculus in such cases. If the relevant legislation is to do its intended work, examinees in the position of the respondent must understand that refusal or failure to comply with the provisions will result in stern punishment.

51 It is to be acknowledged that the respondent did not enter a plea of guilty to the offence charged. However, I accept that he had subjective concerns about the circumstances of his transportation and possible perceptions of other prisoners. Further, the contested hearing was conducted concisely and efficiently. In all the circumstances, I do not consider the fact that the proceedings were contested as a matter weighing heavily against the respondent.

52 I note that he told the Examiner, ‘sorry’, on two occasions before he was charged with contempt. I am not prepared to accept those remarks as expressions of remorse for having committed the offending, but rather utterances intended to convey respect for the authority of the Examiner. I do accept the respondent’s subjective concerns were not without complete foundation and his reasons for the refusal were not flighty or fanciful. As submitted on his behalf, these expressed concerns are not irrelevant to sentence, and I take them into account as mitigating his offending. At the same time, I have assessed these concerns in the context of him not having received actual threats.

53 I acknowledge the possibility that the respondent was prevaricating to some extent, but note this is to be seen in the context of his age and the circumstances of his transportation from a high security prison. In all the circumstances, I am prepared to accept his level of moral culpability is lessened. I accept the likelihood that he was concerned, but also the context of him being pressed by the Examiner to answer questions on issues that were somewhat difficult to answer fully and frankly.

54 I conclude the respondent was probably not doing his best to answer questions. However, as above, I accept that this occurred in the context of his youth and surrounding custodial circumstances. Overall, it is difficult to satisfactorily unravel the weight to be apportioned to the aspects of the respondent’s subjective concerns relating to his safety and his perception of the Examiner’s disdain at his apparent reluctance to provide answers to difficult questions.

55 While the present offending is of a serious kind, the nature and gravity of the respondent’s particular offending does not fall at the higher levels of seriousness. I also accept that his moral culpability is towards the mid to lower end. In making this assessment, I have considered his youth, subjective concerns and his particular prison environment. I have also taken into account that this was not a case where the respondent did not provide a reason for his refusal, as has occurred in some past similar cases. However, I also note that the respondent was aware of the consequences of failing to cooperate with the Examiner.

56 The respondent has matters in mitigation of his offending, as detailed above. In assessing the appropriate sentence, I remain conscious of the fact he is a young man of [redacted] years old who has now been in an adult custodial setting for a considerable period of time. As noted, I do not conclude special deterrence as a factor that should weigh significantly in the sentencing equation. Despite his criminal history, I am not prepared to conclude that his prospects of rehabilitation are closed, where the report of Mr [redacted] gives some hope for his future. Further, there is nothing to suggest he will appear before the Chief Examiner again while he remains in his present custodial setting.

57 As to the question of totality, the respondent received a sentence of four years imprisonment with a non-parole period of two years and four months on [redacted]. His due date for release is in [redacted]. By that time, he will have been in adult custody as a youthful offender for a considerable period of time. In the circumstances of his youth, I have had regard to the principle of totality.

58 In all the circumstances, and taking into account all the relevant considerations, I sentence the respondent to five months imprisonment. I order that two months of the sentence imposed will be served cumulatively on the sentence he is presently undergoing.

[9] Victoria, Parliamentary Debates, Legislative Council, 10 November 2004 (Hon. J.M. Madden).

[12] R v Sherwani [2017] VSC 147, [20] – [21] and the authorities cited there. See also R v Murray [2018] VSC 133, [32] – [35].

[22] R v Murray [2018] VSC 133; see also 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).

Supreme Court of Victoria

R v Michael (a pseudonym) (No 2) [2020] VSC 391 (26 June 2020)