Citation: Commissioner for Fair Trading v Garay & Ors [2005] NSWSC 647
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 June 2005
Judge(s): Buddin J
Background
The Commissioner for Fair Trading commenced proceedings in late 2003 against a building and turf supply operator and associated entities. None of the defendants held the required licence to undertake residential building work under the Home Building Act 1989. The Court made interim orders on 10 November 2003, followed by final injunctive orders by consent on 24 November 2003, restraining the defendants from engaging in residential building work and from making false representations about their authorisation to sell a particular variety of grass.
Within days of the final orders being made, the offender began breaching them. He entered into contracts for unlicensed residential building work, attended properties to provide quotes, used associated companies to carry out the work, and even asked a homeowner to lie to Office of Fair Trading investigators about the nature of the arrangement. The contempt proceedings were brought in two separate sets, reflecting distinct periods and instances of breach.
By the time the matter came before Buddin J for sentencing, eight charges of contempt had been established across two sets of proceedings. The breaches were found to have been wilful and repeated over an extended period.
Legal Issues
- What sentence was appropriate for multiple proven charges of contempt of court arising from deliberate and repeated breaches of Supreme Court injunctions?
- How should the principles of totality and the proportionality between head sentence and non-parole period apply when sentencing for two separate sets of contempt proceedings?
- Whether any favourable subjective factors warranted a reduction in what would otherwise be the appropriate custodial term.
Decision
Buddin J found that the offender's conduct represented a deliberate defiance of Supreme Court orders and that nothing less than a custodial sentence was appropriate. The breaches were characterised as wilful and repeated, and the court emphasised that contempt of court must be taken seriously to protect the authority of the judicial system. At the same time, the court acknowledged favourable subjective features in the offender's circumstances, which moderated the length of the sentence.
For the first set of four contempt charges, each attracting four months' imprisonment to be served concurrently, the court determined that a sentence exceeding six months was not warranted given those subjective factors. For the second set of four charges, the court imposed a non-parole period of eight months (with a four-month balance of term), to be served consecutively to the first set of sentences. This produced a total effective non-parole period of 12 months and a total effective sentence of 16 months.
The court made a finding of "special circumstances" in relation to the second set of sentences, but only to ensure that the ratio between the overall head sentence and the non-parole period remained consistent with the standard statutory proportion. The court applied the High Court's guidance in Pearce v The Queen on totality principles when structuring the aggregate sentence.
All sentences were directed to be served by way of periodic detention. The offender had been assessed as suitable for periodic detention and had signed the required undertaking under the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- Four charges in the first set of proceedings: imprisonment for four months on each charge, served concurrently, commencing 8 July 2005.
- Four charges in the second set of proceedings: non-parole period of eight months on each charge (balance of term four months), served concurrently with each other, commencing immediately upon expiry of the first set of sentences.
- Total effective non-parole period of 12 months; total effective sentence of 16 months.
- All sentences to be served by way of periodic detention; the offender directed to report to Tomago Periodic Detention Centre at 8.30 am on 9 July 2005.
- The offender to be released on parole at the expiration of the non-parole period for the second set of offences.
- The offender ordered to pay the plaintiff's costs.
Key Takeaways
- Wilful and repeated breaches of Supreme Court injunctions will ordinarily attract custodial sentences, reflecting the need to uphold the authority of court orders and deter deliberate defiance.
- Favourable subjective features can moderate the length of a contempt sentence, but the Supreme Court confirmed they will not displace the need for imprisonment where the conduct is serious, deliberate, and sustained.
- Where an offender is sentenced for two separate sets of contempt proceedings, the principles of totality from Pearce v The Queen apply, requiring the overall sentence to remain proportionate to the totality of the offending.
- A finding of "special circumstances" justifying an adjustment to the non-parole period is available in contempt sentencing, though here it was invoked narrowly and only to preserve the correct statutory relationship between the head sentence and the non-parole period.
- Periodic detention was available as the mode of serving an imprisonment sentence for contempt, provided the offender meets the assessment criteria and complies with the procedural requirements under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Home Building Act 1989 (NSW)
- Fair Trading Act 1987 (NSW)
- Supreme Court Rules (NSW), Pt 55 r 7
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435
- Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527
- R v Thomson and Houlton (2000) 49 NSWLR 383
- AG for NSW v Whiley (1993) 31 NSWLR 314
- Cameron v The Queen (2002) 187 ALR 65
- Commissioner for Fair Trading v Elasaad [2005] NSWSC 414
- Commissioner for Fair Trading v Oliver [2004] NSWSC 732
- Director-General of the Department of Fair Trading v Yang (2002) 132 A Crim R 438
- Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309
- Wood v Staunton (No 5) (1996) 86 A Crim R 183