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Supreme Court 23 August 2002

Director-General of the Department of Fair Trading v Yang

[2002] NSWSC 754

Also reported as (2002) 132 A Crim R 438
Public order & justice offences
PROCEEDINGS FOR CONTEMPT PT 55 OF THE SUPREME COURT RULES PLEADED GUILTY AT AN EARLY STAGE GAMBLING PROBLEMS NO PRIOR CONVICTIONS CUSTODIAL SENTENCE REQUIRED

Citation: Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754
Court: Supreme Court of New South Wales
Date: 23 August 2002
Judge(s): Buddin J

Background

The respondent held a real estate agent's licence from 1995 until November 2000, when the NSW Licensing Court cancelled it and disqualified him from holding any licence for five years. The cancellation followed findings that he had been responsible for trust account defalcations at an agency he directed. He did not appeal.

By mid-2001 the Department of Fair Trading had discovered he was again operating as a real estate agent in breach of the disqualification. The Department obtained urgent injunctions, and on 26 July 2001 Buddin J's colleague Studdert J made formal orders on the back of undertakings given by the respondent's counsel: the respondent would stop representing himself as a real estate agent, cease carrying on that business, and not manage any corporation engaged in real estate agency.

Within weeks of those undertakings, the respondent established a new real estate business in Maroubra. The structure of the business placed his wife as sole shareholder and a licensed agent nominally in charge, but the respondent described himself in business documents as Managing Director and controlled the enterprise in substance. He continued operating the business until at least April 2002. Claims of around $250,000 were subsequently lodged with the Property Services Compensation Fund by persons who said they had suffered losses at the hands of the business.

  • Whether the respondent was guilty of contempt under Pt 55 of the Supreme Court Rules for breaching the orders and undertakings made before Studdert J
  • What sentence was appropriate for contempt that involved deliberate and calculated defiance of court orders, having regard to mitigating factors including an early guilty plea, gambling problems, and no prior convictions
  • Whether "special circumstances" existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period that departed from the statutory standard ratio

Decision

The respondent pleaded guilty to two charges of contempt at an early stage. Buddin J accepted that plea and proceeded to sentencing. The court noted that a conviction for contempt is criminal in nature and that sentencing must reflect principles applicable to criminal punishment generally, as well as the particular purpose of protecting the authority of the courts and the orderly administration of justice.

Buddin J identified significant aggravating features. The respondent had personally been told by Studdert J of the importance of the undertakings he had given. He nonetheless established a new real estate business within weeks, operating it in a manner deliberately structured to conceal his controlling role. His conduct was characterised as deliberate and calculated defiance of court orders rather than inadvertent breach.

In mitigation, the court accepted the early guilty plea, the absence of prior convictions, and evidence of a gambling problem that the court treated as a background explanation (though not an excuse) for his conduct. Buddin J declined to give the gambling problem significant weight as a mitigating factor in the circumstances, but did regard it as relevant when considering supervision needs after release.

The court found that the seriousness of the contempt, and the need to vindicate the authority of the courts, required a full-time custodial sentence despite the mitigating matters. Buddin J also found "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which permitted a non-parole period proportionally shorter than the standard ratio, principally to allow for a supervised period in the community during which the respondent could address his gambling problems.

Orders Made

  • On each charge: imprisonment for 9 months, commencing 5 July 2002 and expiring 4 April 2003, with sentences to be served concurrently
  • Non-parole period of 2 months on each charge, commencing 5 July 2002 and expiring 4 September 2002
  • Release on parole at expiration of the non-parole period (4 September 2002), subject to standard statutory conditions
  • Additional parole condition: compliance with reasonable directions of the Probation and Parole Service, including participation in any program or treatment directed at addressing gambling problems
  • The respondent to report to the Hamilton Office of Probation and Parole Service within 7 days of release
  • The respondent to pay the applicant's costs

Key Takeaways

  • Deliberate and calculated defiance of court orders, particularly where the contemnor was personally informed of the significance of undertakings, warrants a full-time custodial sentence even where mitigating factors such as an early guilty plea and no prior convictions are present.
  • A conviction for contempt of court is criminal in nature, and sentencing must serve the purpose of protecting the undisturbed and orderly administration of justice, not merely punish the individual.
  • Where a contemnor structures a business to conceal their controlling role and thereby circumvent a court order, that artifice is treated as an aggravating feature rather than a neutral arrangement.
  • "Special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established in contempt proceedings where the sentencing court identifies a particular rehabilitative need, such as supervised treatment for a gambling problem, that justifies a non-parole period shorter than the standard ratio.
  • The court confined its sentencing to the proved contempt charges and expressly declined to treat unproven allegations of broader dishonesty, including substantial compensation fund claims, as aggravating factors.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Supreme Court Rules (NSW), Pt 55 r 7

Cases
- AG for NSW v Whiley (1993) 31 NSWLR 314
- Cameron v The Queen (2002) 187 ALR 65
- Department of Fair Trading v O'Keefe [2002] NSWSC 398
- Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435
- R v Sharma [2002] NSWCCA 142
- R v Thomson (2000) 49 NSWLR 383
- Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309