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Supreme Court 11 November 2005

NCR Australia v Credit Connection

[2005] NSWSC 1118

Public order & justice offences
PROCEDURE CONTEMPT, ATTACHMENT AND SEQUESTRATION RANGE OF PENALTIES AVAILABLE EFFECT OF PLEA OF GUILTY SENTENCING FOR MULTIPLE CONTEMPTS EVIDENCE

Citation: NCR Australia v Credit Connection [2005] NSWSC 1118
Court: Supreme Court of New South Wales (Equity Division)
Date: 11 November 2005
Judge(s): Campbell J

Background

The plaintiff brought contempt proceedings against the second defendant, who had been subject to a Mareva order (a court order freezing a party's assets to prevent dissipation before judgment) made by Young J on 10 May 2000. The order, as varied on six occasions, permitted the second defendant to spend no more than $2,500 per month on ordinary living expenses and outgoings.

In June 2003, a mortgagee's sale of the second defendant's home produced net proceeds of approximately $88,737, which were deposited into his Westpac bank account. Over the following three months, the second defendant made ten separate withdrawals from that account totalling approximately $69,939, well in excess of what the order permitted.

The plaintiff charged the second defendant with ten separate counts of contempt, one for each withdrawal. The second defendant pleaded guilty to all ten charges, and the proceedings before Campbell J concerned the appropriate sentence.

  • What range of penalties is available for contempt arising from a breach of court orders in civil proceedings?
  • To what standard must facts relevant to sentencing for contempt be proved?
  • When is imprisonment available as a penalty where the contemnor has not been served with a sealed copy of the order endorsed with a warning that imprisonment is a possible consequence of breach?
  • What are the preconditions for imposing a community service order in contempt proceedings?
  • What discount, if any, applies to a late plea of guilty in contempt sentencing?
  • How should the totality principle operate when sentencing for multiple counts of contempt heard together?
  • Whether a community service order is available where imprisonment is not possible for that particular offender and offence, but is possible for the general category of offence committed.
  • Whether the conduct could be characterised as "part of a planned or organised criminal activity" under the aggravating factors in section 21A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Campbell J worked through the full sentencing framework applicable to civil contempt, drawing on both contempt-specific authorities and the general sentencing provisions of the Crimes (Sentencing Procedure) Act 1999. His Honour considered the nature, seriousness, and duration of the breaches, the second defendant's personal circumstances, and the significance of the guilty plea.

On the availability of imprisonment, the Court noted that the absence of an endorsed warning on a sealed copy of the order did not absolutely preclude imprisonment, but found that in the circumstances of this case imprisonment was not the appropriate penalty. The Court instead turned to the possibility of a community service order, and resolved the question of whether such an order is available even where imprisonment is not possible for this particular offender and offence, concluding that a community service order can be imposed where imprisonment would be available for the general category of offence.

For each of the ten counts, Campbell J assessed a starting sentence of 50 hours of community service, noting that the first withdrawal was the largest but that the essential gravity of each count lay in the fact of breach rather than in the precise amount involved. Applying the totality principle, His Honour ordered 20 hours of each of counts 2 through 10 to be served concurrently with preceding counts, producing a raw total of 320 hours before discount.

A 10% discount was applied for the late guilty plea, reducing each count's sentence from 50 to 45 hours, with the concurrent portions reduced proportionally from 20 to 18 hours. The resulting total sentence was 288 hours of community service. Indemnity costs were ordered against the second defendant, consistent with the usual approach in contempt proceedings where an obtained order has been breached.

Orders Made

  • The second defendant is sentenced to perform 288 hours of community service.
  • The second defendant is directed to report to the NSW Probation and Parole Service at Hurstville within seven days of the making of the orders.
  • The second defendant is to pay the plaintiff's costs of the Notice of Motion on an indemnity basis.

Key Takeaways

  • Community service orders are available in civil contempt proceedings even where imprisonment is not available for that particular offender and offence, provided imprisonment is possible for the general category of offence committed.
  • A 10% discount on sentence applies to a late guilty plea in contempt proceedings, consistent with the approach taken in ordinary criminal sentencing under R v Thomson; R v Houlton.
  • The totality principle applies when sentencing for multiple counts of contempt heard at the one time, and a sentencing court may order portions of individual sentences to run concurrently to avoid a crushing aggregate outcome.
  • Absence of an endorsed warning on a sealed copy of a court order does not automatically preclude imprisonment as a sentencing option for contempt, though it remains a relevant discretionary consideration.
  • In contempt proceedings arising from a breach of civil orders, the usual costs order is indemnity costs in favour of the party whose order was breached, reflecting the court's aim to provide full indemnity for enforcement of its orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 21A
- Crimes (Sentencing Procedure) Regulation 2005 (NSW)
- Supreme Court Rules 1970 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)

Cases
- Witham v Holloway (1995) 183 CLR 525
- Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Olbrich (1999) 199 CLR 270
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
- Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
- Australian Securities and Investments Commission v Michalik and others [2004] NSWSC 1259; (2004) 52 ACSR 115
- Australian Securities and Investments Commission v Michalik and others (No 2) [2004] NSWSC 1260; (2004) 62 NSWLR 335
- A-G for NSW v Whiley (1993) 31 NSWLR 314
- R v Henry (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v Wong (1999) 48 NSWLR 340
- Ryan v Wright (No 2) [2004] NSWSC 1019
- Miller & Anor v Eurovox Pty Ltd & Anor [2004] VSCA 211