Citation: Principal Registrar of the Supreme Court of New South Wales v Joseph Assi [2005] NSWSC 183
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 March 2005
Judge(s): Brownie AJ
Background
The defendant, a former solicitor, had been found guilty on 22 November 2004 of eight charges of contempt of court. The contempts arose from his repeated breach of a Supreme Court order (made by Simpson J) prohibiting him from holding himself out as a solicitor. Over a period of approximately two years, he continued to act in that capacity for at least four separate clients, deceiving them in the process.
In the interval between the contempt findings and this sentencing hearing, the defendant had also pleaded guilty in the District Court to charges of fraudulent misappropriation and obtaining a valuable thing by deception, with a further seven similar offences taken into account. On 17 February 2005, Judge Latham sentenced him in the District Court to a total of seven and a half years imprisonment, with an aggregate non-parole period of four years and nine months. There was a degree of factual overlap between those offences and the contempt charges.
The present hearing before Brownie AJ concerned the appropriate sentence to impose for the eight contempts, taking into account the existing District Court sentences and the risk of the defendant being punished twice for substantially the same conduct.
Legal Issues
- Whether the District Court sentences had already taken the contempts of court into account, such that separate punishment would constitute double punishment for the same conduct
- What additional sentence, if any, was appropriate for the eight contempt charges, bearing in mind the overlap with the District Court proceedings
- Whether the procedural requirements under Part 42 of the Supreme Court Rules (concerning service of an endorsed minute of the relevant order) had been satisfied, or whether the court should exercise its discretion to dispense with those requirements
Decision
Brownie AJ accepted that Judge Latham had, to some extent, treated the defendant's breach of the Supreme Court order as an aggravating circumstance, citing her observation that the defendant had "demonstrated an ongoing attitude of disobedience to the law." However, his Honour was not satisfied that Judge Latham had specifically addressed the contempts as separate offences requiring separate punishment, as distinct from treating the conduct as an aggravating feature of the fraud charges. The court therefore proceeded to impose additional sentences, while being careful to guard against any perception of double punishment.
His Honour found the contempts to be serious. They were sustained over two years, involved multiple victims, and represented a deliberate flouting of a court order. The principles of general and individual deterrence, and the need for denunciation, all called for a custodial sentence. The defendant's gambling addiction was accepted as explanatory but not as justification or excuse, and his Honour found no real contrition, noting the defendant had pleaded not guilty and given evidence inconsistent with the objective facts.
Taking the overlap with the District Court sentences into account, the court fixed a cumulative aggregate sentence of twelve months imprisonment, to commence at the conclusion of the existing sentences in November 2009. The non-parole period was set at three months. The disproportion between the head sentence and the non-parole period was justified by the special circumstances of the case, including the significant factual overlap and the need to avoid double punishment.
On the procedural question, Brownie AJ found this to be an appropriate case to exercise the discretion under Part 42, rules 8(6) and 8(7) of the Supreme Court Rules to dispense with the formal endorsement requirements. The defendant had received a copy of the relevant order, had previously consented to an interlocutory injunction in related proceedings, and as a former solicitor must be taken to have understood the nature and effect of the order he was bound by.
Orders Made
- On each of the eight contempt charges: twelve months imprisonment, commencing 17 November 2009 and ending 16 November 2010
- Non-parole period of three months on each charge, commencing 17 November 2009 and ending 16 February 2010
- All eight sentences and non-parole periods to be served concurrently with one another
- Liberty granted to either party to apply as to costs
Key Takeaways
- Where a sentencing court has already treated contempt-related conduct as an aggravating feature of other criminal charges, a subsequent court sentencing for the contempts must take that into account to avoid any perception of double punishment, even where formal double jeopardy principles do not strictly apply.
- Serious contempts involving sustained and deliberate breach of a court order over two years, affecting multiple victims, will attract custodial sentences on the basis of general deterrence, individual deterrence, and denunciation.
- A gambling addiction may be accepted as a mitigating circumstance in a limited sense, explaining conduct, but it does not justify or excuse a deliberate and prolonged breach of a court order.
- Under Part 42 of the Supreme Court Rules, the court retains a discretion to dispense with the formal endorsement and service requirements before punishing for contempt, but that discretion is to be exercised sparingly and only where special circumstances exist, such as demonstrated actual knowledge of the order by a legally qualified defendant.
- The ordinary proportionality between a head sentence and a non-parole period may be departed from where the specific circumstances of the case, including substantial factual overlap with prior sentences, make the case sufficiently unusual to fall outside the standard range.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Supreme Court Rules (NSW), Part 42, rules 8(3), 8(6) and 8(7)
Cases:
- Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655