Citation: Commissioner for Fair Trading v Diab [2006] NSWSC 1066
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 July 2006
Judge(s): Adams J
Background
The defendant was a residential painting contractor whose licence had been suspended and then cancelled by Fair Trading in 2005. On 1 February 2006, Justice James of the Supreme Court granted injunctions under the Home Building Act 1989 and the Fair Trading Act 1987 prohibiting the defendant from undertaking painting work, entering into contracts for such work, receiving payments, or misrepresenting that he held a licence.
Within days of being personally served with those orders, the defendant resumed precisely the conduct the orders targeted. He placed newspaper advertisements under fictitious names, attended consumers' homes, falsely claimed to hold a current licence, and collected deposits from multiple householders before performing little or no work. The Commissioner for Fair Trading brought 36 charges of contempt under Part 55 of the Supreme Court Rules, of which 12 proceeded to sentence.
The defendant's conduct was connected to a serious gambling addiction. He had already been convicted in Liverpool Local Court in September 2005 of multiple offences under the Home Building Act arising from the same underlying pattern of behaviour, a circumstance that required the sentencing court to address the risk of double counting.
Legal Issues
- What sentence was appropriate for 12 charges of contempt arising from breach of Supreme Court injunctions under the Home Building Act 1989 and Fair Trading Act 1987?
- How should the court treat prior criminal convictions and sentences under the Crimes Act 1900 for overlapping conduct, so as to avoid double counting?
- What weight should be given to the defendant's guilty plea, his gambling addiction, and his prospects for rehabilitation?
- Whether special circumstances existed under section 44 of the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard ratio of non-parole period to total sentence.
Decision
Adams J accepted that the defendant's conduct was serious and persistent. Despite being fully aware of the injunctions, he breached them within days and across multiple transactions involving different consumers, collecting deposits he had no intention of applying to the contracted work. The court found that the pattern of deception involving fictitious names, false licence numbers, and misleading documentation represented a sustained and calculated course of conduct.
The court was careful not to punish the defendant twice for conduct that had already been addressed by the Local Court convictions. Where the contempt charges and the earlier criminal convictions overlapped factually, Adams J adjusted the approach to sentence to avoid double counting, consistent with the principle in Pearce v The Queen (1998) 194 CLR 610.
The court accepted evidence of the defendant's gambling addiction as a significant mitigating factor, finding him genuinely remorseful and on a credible path toward rehabilitation through Gamblers' Anonymous. A 25 percent discount was applied for the early guilty plea, which the court characterised as a substantial utilitarian benefit given the complexity and volume of charges that would otherwise have required a lengthy trial.
Special circumstances were found to exist under section 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a longer parole period than the statutory default. The court's reasoning was that the defendant would benefit from post-release supervision to support his rehabilitation.
Orders Made
- On each of the 12 contempt charges: a non-parole period of nine months commencing 9 September 2006 and concluding 8 June 2007.
- The balance of each term to commence 9 June 2007 and expire 8 March 2008.
- The defendant to be released on parole on 8 June 2007.
- Upon release, the defendant to be placed under the supervision of the Probation and Parole Service.
Key Takeaways
- Where a defendant faces contempt charges arising from conduct that has already been the subject of criminal convictions and sentences, the sentencing court must guard against double counting by ensuring the same conduct is not effectively punished twice.
- A guilty plea to contempt charges carries utilitarian value even in civil contempt proceedings before the Supreme Court, particularly where a contested hearing would have been lengthy and complex; the court applied a 25 percent discount here.
- Gambling addiction, where genuinely established and linked causally to the offending, can constitute a mitigating factor in contempt sentencing, particularly when combined with credible evidence of remorse and steps toward rehabilitation.
- Special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 can be established where an accumulation of sentences and the defendant's rehabilitative needs together justify extending the supervisory parole period beyond the statutory ratio.
- Breach of injunctive orders within days of service, using fictitious identities and false licence numbers across multiple victims, was treated by the Supreme Court as conduct warranting a custodial sentence notwithstanding significant mitigating factors.
Legislation and Cases Referenced
Legislation:
- Home Building Act 1989 (NSW), ss 4, 7, 7A, 8, 17, 18B, 34, 51, 92, 138
- Fair Trading Act 1987 (NSW), ss 42, 53, 65
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes Act 1900 (NSW)
- Supreme Court Rules (NSW), Part 55
Cases:
- Pearce v The Queen (1998) 194 CLR 610