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Supreme Court 3 May 2002

DEPARTMENT OF FAIR TRADING v. O'KEEFE

[2002] NSWSC 398

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW CONTEMPT SENTENCE APPROPRIATENESS OF IMPRISONMENT DETERRENT UPHOLDING PROCESS OF JUSTICE.

Citation: Department of Fair Trading v O'Keefe [2002] NSWSC 398
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 May 2002
Judge(s): Greg James J

Background

The Director-General of the Department of Fair Trading obtained an injunction in July 2001 restraining the offender from carrying on unlawful financial broking activities. Those activities had caused numerous members of the public to lose or place at risk substantial sums, estimated at between $100,000 and $120,000, after being induced to pay deposits for finance that was never provided.

Between 7 August and 12 November 2001, the offender continued to promote, advertise, and supply financial services in direct breach of that injunction. He also failed to repay the affected consumers as the court order required, and his conduct was found to have breached provisions of both the Fair Trading Act and the Credit (Finance) Act 1994.

The offender was taken into custody on 18 January 2002 and pleaded guilty to the contempt charge when the matter came before the court.

  • What sentence was appropriate for a contempt of court constituted by continued unlawful financial broking in breach of an injunction?
  • How should a guilty plea be treated on sentence for contempt, including the weight to be given to contrition and the facilitation of the court's processes?
  • How did the High Court's decision in Cameron v Queen [2002] HCA 6 and the NSW Court of Criminal Appeal's decision in Regina v Thompson (2000) 49 NSWLR 383, as applied in Regina v Sharma [2002] NSWCCA 142, interact in determining any discount for a plea of guilty?

Decision

Greg James J held that the conduct was objectively serious criminality. Breaching an injunction to continue activities that deprived members of the public of significant sums of money directly undermined the processes of justice, and the court found that a substantial custodial sentence was warranted.

On the question of the guilty plea, both counsel accepted that Cameron applied to contempt proceedings because a plea in such proceedings carries particular significance: it reflects a willingness to recognise the court's authority, which goes to the core purpose of contempt sanctions. Separately, Sharma confirmed that the utilitarian discount recognised in Thompson continues to operate in New South Wales alongside the subjective considerations identified in Cameron. The court found it unnecessary to resolve the precise numerical relationship between those two components, given the course ultimately taken on sentence.

Mitigating factors included the early plea, some evidence of contrition in the offender's expressed hope to repay his victims, and the period already spent in custody since 18 January 2002. The offender's prior record, which included property offences and a current good behaviour bond at the time of the contempt, were noted as aggravating the overall criminality. His inability to repay the monies was accepted on the evidence as genuine rather than deliberate non-compliance with that aspect of the order.

Orders Made

  • The offender was sentenced to nine months' imprisonment, commencing 18 January 2002 and expiring 17 October 2002.
  • A non-parole period was set from 18 January 2002 to 3 May 2002 (the date of judgment), with the offender directed to be released on supervised parole that day.
  • Parole conditions included good behaviour, compliance with the Probation and Parole Service's directions, participation in programmes addressing alcoholism and gambling where appropriate, and reporting to the Probation and Parole Service office in Port Macquarie within seven days.
  • The offender was ordered to pay the plaintiff's costs.

Key Takeaways

  • Contempt of court by continuing conduct expressly prohibited by an injunction, particularly where that conduct causes financial harm to members of the public, is treated as seriously undermining the administration of justice and warrants a substantial custodial sentence.
  • A guilty plea to contempt carries particular weight beyond its utilitarian value: because contempt sanctions serve to uphold the court's authority, a plea that demonstrates recognition of that authority goes to a core sentencing consideration.
  • Under Sharma, the utilitarian discount established in Thompson continues to apply in New South Wales alongside the subjective contrition factor recognised in Cameron, though the Supreme Court found it unnecessary here to precisely quantify the relationship between those two principles.
  • An offender's existing obligations to a court, such as a good behaviour bond operative at the time of the contempt, can aggravate the overall criminality by evidencing a further disregard for the processes of justice.
  • Costs followed the event in accordance with usual practice in proceedings of this kind.

Legislation and Cases Referenced

Legislation:
- Fair Trading Act (NSW)
- Credit (Finance) Act 1994 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 22 and 95

Cases:
- Cameron v Queen [2002] HCA 6
- Regina v Thompson (2000) 49 NSWLR 383
- Regina v Sharma [2002] NSWCCA 142