Citation: Doe v Dowling [2017] NSWSC 1037
Court: Supreme Court of New South Wales
Date: 10 August 2017
Judge(s): Harrison J
Background
The contemnor, a website operator and self-described journalist, had previously been found guilty of contempt of court in March 2017 following a breach of orders made by Campbell J in December 2016. Those orders required him to remove the names of two protected individuals (identified as Jane Doe 1 and Jane Doe 2) from a published article and to refrain from publishing certain imputations about them.
Despite being aware of the orders since December 2016, the contemnor left the offending article online with the names intact and continued to publish further articles in breach of the orders. Even after the contempt finding in March 2017, the publications remained online. As recently as 15 July 2017, the contemnor published fresh material that named the protected individuals and contained hyperlinks to earlier offending articles.
The hearing before Harrison J concerned the appropriate penalty for the proven contempt. The contemnor did not appear at the sentencing proceedings, having informed the Court in advance that he did not intend to do so, although he did file written submissions.
Legal Issues
- What penalty is appropriate for a contemnor who has persistently and deliberately disobeyed court orders?
- Does the contemnor's view that the underlying orders were unlawful reduce his culpability?
- Whether the contemnor's failure to appear, absence of contrition, and continued offending bear on the sentencing outcome?
- Whether any penalty short of imprisonment is appropriate given the circumstances?
Decision
Harrison J applied the sentencing framework under the Crimes (Sentencing Procedure) Act 1999 and confirmed that its provisions, including the requirement to consider aggravating and mitigating factors under s 21A, apply to contempt proceedings. The Court surveyed established authority holding that contempt is criminal in nature, and that punishment must address the purposes of deterrence, denunciation, and the protection of the administration of justice.
The Court identified a series of seriously aggravating features. The contemnor had not removed the offending publications despite being previously punished for contempt. He had actively sought to make the protected individuals' identities as widely known as possible and had explicitly stated in his submissions that he refused to remove the names as a deliberate act of protest against what he characterised as illegitimate suppression orders. Harrison J found this statement to be an admission of continuing intentional defiance, not a mitigating circumstance.
The contemnor's argument that his culpability was reduced because the underlying orders might be liable to be set aside was rejected. The Court noted that the proper course, if he believed the orders were wrongly made, was to challenge them through legitimate legal processes, not to disobey them. His belief in the merits of that challenge provided no defence.
The Court was satisfied that no penalty other than full-time imprisonment was appropriate. No contrition had been expressed, no mitigating evidence had been placed before the Court, and the offending conduct was ongoing at the date of sentence. A prior contempt finding had plainly not deterred the contemnor.
Orders Made
- The contemnor was sentenced to a fixed term of imprisonment of four months, commencing 10 August 2017 and expiring 9 December 2017.
Key Takeaways
- A contemnor's belief that an underlying court order is wrongly made does not reduce culpability for disobeying it; the proper response to an order believed to be unlawful is to challenge it through available legal processes, not to ignore it.
- Persistent, deliberate, and ongoing breach of court orders, combined with an absence of contrition and an expressed intention to continue the defiance, will weigh heavily in favour of a custodial sentence.
- Under the Crimes (Sentencing Procedure) Act 1999, sentencing courts in contempt proceedings must consider all possible alternatives before imposing imprisonment; where a prior contempt finding has failed to deter, and no mitigating evidence is before the court, no alternative may be adequate.
- The contemnor's failure to appear at sentencing proceedings and failure to place any evidence of personal circumstances before the Court left the sentencing judge with no basis to moderate the sentence on mitigating grounds.
- Seeking or receiving a benefit from the contempt, in this case the public identification of protected individuals as part of an agenda the contemnor sought to advance, is a recognised aggravating factor in contempt sentencing.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A and Part 2
- Uniform Civil Procedure Rules 2005 (NSW), Part 55, r 55.13
Cases
- AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
- ASIC v Matthews [2009] NSWSC 285
- Commissioner for Fair Trading v Partridge [2006] NSWSC 478
- Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415
- Doe v Dowling [2017] NSWSC 202
- Hinch v A-G [1987] VR 721
- Munsie v Dowling [2014] NSWSC 962
- Munsie v Dowling (No 2) [2014] NSWSC 1042
- Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527
- Prothonotary of Supreme Court of New South Wales v Ceren [2016] NSWSC 1187
- Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
- Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506
- Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202
- Witham v Holloway (1995) 183 CLR 525