Abduramanoski & Abduramanoska
[2005] FamCA 88
•25 February 2005
[2005] FamCA 88
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT PERTH
Appeal No. WA14 of 2004
File No. PT245 of 2004
IN THE MATTER OF:
DAI
Appellant/Husband
- and -
DAA
Respondent/Wife
REASONS FOR JUDGMENT
BEFORE:Kay, Holden and Boland JJ
HEARD:29 November 2004
JUDGMENT: 25 February 2005
APPEAL SUMMARY
MATTER:DAI and DAA
APPEAL NUMBER: WA 14 of 2004 (PT 245 of 2004)
CORAM:Kay, Holden and Boland JJ
DATE OF HEARING: 29 November 2004
DATE OF JUDGMENT: 25 February 2005
CATCHWORDS:
APPEAL – Sentencing – Contempt – Severity of sentence – Eighteen month imprisonment for three breaches of orders pursuant to s.112AP, Part XIIIB of the Family Law Act 1975 (Cth) – Whether term of imprisonment should be reduced to six months being two months for each breach – Whether term of imprisonment should be determined cumulatively or concurrently for each breach – Transparency of sentence – Sentencing under Part XIIIB – Whether criminal sentencing guidelines apply
Ibbotson and Wincen (1994) FLC 92-496
Schwarzkopff and Schwarzkopff (1992) FLC 92-303
Tate and Tate (No 3) (2003) FLC 93-138
Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866
Tate and Tate (2002) FLC 93-107
House v King (1936) 55 CLR 499
Gronow v Gronow (1979) FLC 90-716
R v Geddes (1936) 36 SR (NSW) 554
Fauna Holdings Pty. Ltd. and McGillivray and Ors v Mitchell (No 2) (2000) FLC 93-053
Pearce v The Queen (1998) 194 CLR 610
Johnson v The Queen (2004) 205 ALR 346
Cummings and Cummings (1976) FLC 90-100
Australasian Meat Industry Employees Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98
K and J (2004) FLC 93-177
Witham v Holloway (1995) 183 CLR 525
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
Ryan v Wright (No 2) [2004] NSWSC 1019
Australian Securities and Investments Commission v Michalik (aka Tomaszewski and Krawczyk) [2004] NSWSC 1259
Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Australian Securities Commission v Macleod (No 3) (1993) 40 FCR 475
Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1998] 1441 FCA
Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1999] FCA 585
Hudson v Australian Competition and Consumer Commission [1999] FCA 891
Australian Competition and Consumer Commission v World Netsafe Pty. Ltd. (2003) 133 FCR 279
Ascot Investments and Harper and Harper (No 3) (1982) FLC 91-253
[N] and [N] (unreported, Coleman J, 7 May, 1993)
Lightfoot v Lightfoot [1989] 1 FLR 414
Burton v Winters and Another [1993] 3 All ER 847
Appeal dismissed.
Introduction
1. This is an appeal by the husband against an order made by Penny J. on 6 August 2004 sentencing the husband to a term of imprisonment of 18 months. The sentence was imposed by the trial Judge following her findings under s.112AP of the Family Law Act 1975 (Cth) (“the Act”) that allegations of three breaches of orders made in the Court of Petty Sessions, Perth in proceedings between the husband and the wife were proved beyond reasonable doubt. The husband does not dispute those findings. His appeal is concerned only with the severity of the sentence imposed by the trial Judge.
2. The contempt, as found by the trial Judge, arose from breaches of orders made on 8 and 29 March, 2004 after the husband removed the net proceeds of the sale of the parties’ former matrimonial home totalling $233,782.70 from their joint account, transferred the funds to his own account, and subsequently transferred $194,224.59 to various members of his family. The husband thereafter retrieved $180,000 of the funds from members of his family, and on 10 March, 2004 remitted this sum overseas to his aunt in Switzerland.
3. On 29 March, 2004 the husband was ordered, inter alia, to send a letter to his aunt irrevocably authorising her to return the funds forwarded to her by the husband to the parties’ joint account. There is no dispute that the husband did not, and has not, complied with this order.
4. The husband’s counsel concedes that, as a result of the husband’s actions, the only money remaining in Australia is the sum of $12,850.
5. At the commencement of the appeal the husband abandoned Ground 2 of the grounds in his Notice of Appeal filed 3 September, 2004. By an application in a case filed 18 November, 2004, the husband sought different orders to those set out in the Notice of Appeal. He now seeks orders that he be sentenced to “a term of imprisonment of 6 months commencing 6 August 2004 which is 2 months on each counts (sic) to be cumulative”. At the hearing before us the husband’s counsel conceded that a reduction in the sentence to a period of 12 months could be appropriate, although he contended for a lesser period.
6. The order made by the trial Judge at the conclusion of her sentencing judgment is as follows:
“The Respondent [DAI]…is hereby sentenced to a term of imprisonment for a period of 18 months, to commence from the date of this order, and to give effect to this order a Warrant of Commitment forthwith issue in the usual form.”
7. The wife did not appear on the appeal.
Background history
8. The material before us contained little information about the duration of the parties’ marriage, the birth of their children, the history of acquisition of assets or other contributions made by either party.
9. The short background history of the events leading up to the contempt application is set out in trial Judge’s reasons following the hearing of the contempt application (“the contempt judgment”). Those facts are not in dispute before us. Relevant events set out below are referred to in the findings made by the trial Judge in her contempt judgment, and in her separate judgment imposing sentence (“the sentencing judgment”).
10. The parties separated on 11 December 2003. A month prior to separation the parties sold their matrimonial home. It was registered in their joint names. The proceeds of the sale of $233,782.70 were placed in their joint account with the National Australia Bank (“the NAB account”).
11. On or about 1 December, 2003, without the wife’s knowledge or consent, the husband transferred the proceeds of sale of the matrimonial home from the NAB account to his own bank account. He withdrew $1,000 and placed the balance in two separate accounts one containing $12,850 and the other $220,000. On the same day the husband transferred the sum of $220,000 into the account of PD (“the cousin”).
12. On 16 January, 2004 the wife commenced proceedings in the Court of Petty Sessions, Perth for property settlement. She also sought interlocutory orders for injunctive relief in respect of the proceeds of sale of the matrimonial home.
13. On 4 February, 2004 the cousin’s husband transferred the sum of $198,820 into an account in the name of the husband’s father.
14. In an affidavit sworn by the husband on 10 February, 2004 and filed in the Court of Petty Sessions on 11 February, 2004 he deposed that the proceeds of the NAB account had been deposited into the cousin’s account. The husband further said the cousin returned $20,000 to him to fit out his accommodation, and that she paid $5,000 to his solicitors. The husband deposited $12,180 from the $20,000 received by him from the cousin into his own bank account. He did not reveal that the sum of $198,820 had been transferred from the cousin’s account to his father’s account.
15. On 13 February, 2004 the sum of $198,820 was withdrawn from the husband’s father’s account and given to the husband. The husband asserts these funds were distributed to family and friends.
16. On 20 February, 2004 the wife filed an application seeking to join the cousin and to have her transfer $195,000, or the balance held by her from the sum transferred by the husband, to a joint account in the name of the husband and the wife.
17. On 23 February, 2004 orders were made in the Court of Petty Sessions restraining the husband’s father from dealing with any funds given to him by the husband. The trial Judge noted that the Magistrate could only have made such an order on being advised that the husband’s father was holding funds.
18. On 8 March, 2004 between 10a.m. and 11.30a.m. the husband collected the funds he had previously distributed to family and friends. Later the same day at about 12 noon the husband appeared in the Court of Petty Sessions when he relied on an affidavit sworn by him on that day in which he deposed:
·that information about the funds (which in his first Affidavit he said were in the cousin’s account) was incorrect, and that the funds had been deposited into his father’s account on 4 February, 2004; and
·that the sum of $198,820 was withdrawn from his father’s bank account in cash and given to him, and that he distributed the funds to family and friends.
On this evidence the Magistrate discharged the husband’s father as a party to the proceedings, and orders were made restraining the eight people named by the husband as being in receipt of the funds from dealing with those funds, if they did not return them to the joint bank account. Another order was made that the husband provide the addresses of those persons.
19. On 10 March, 2004 the husband transferred from the funds held by him the sum of $180,000 to his aunt in Switzerland by forwarding funds from four Perth banks by telegraphic transfer.
20. On 16 March, 2004 the husband appeared in the Court of Petty Sessions and produced a document asserting that his relatives and friends were not in possession of the parties’ funds when orders were made on 8 March, 2004. The husband did not disclose to the Court that he had transferred funds to Switzerland on 10 March, 2004. Orders were made by the Court of Petty Sessions restraining the husband from dealing with the funds, and requiring him to deposit the funds into the NAB account.
21. On 25 March, 2004 the husband gave oral evidence before the Court of Petty Sessions and said the funds were with his aunt whose name was [G]. The husband claimed to be unable to give any further information about his aunt’s name.
22. On 29 March, 2004 the husband gave further oral evidence before the Court of Petty Sessions. On that day the husband revealed that his aunt was the recipient of the funds forwarded to Switzerland, but said that he did not have her address. Orders were made restraining the husband dealing in any way with the funds transferred to his aunt, except to direct her to return the funds to the NAB account, and that the husband forthwith write to his aunt irrevocably authorising her to return the monies sent to her to the NAB account.
23. On 7 May, 2004 the wife filed her Application Contempt which was amended in an Amended Application-Contempt filed on 26 July, 2004. The wife set out three allegations as follows:
“1.The Respondent Husband in deliberate breach of the order made on 8 March 2004, failed, neglected or refused to supply or cause to be supplied to the Applicant the addresses of each and every person named in paragraph 2 of the Court Order of 8 March 2004, namely:
(a) [IA]
(b) [DE]
(c) [AZA]
(d) [ABA]
(e) [ZA]
(f) [FM]
(g) [ATA]; and
(h) [SA]
…
2.The Respondent Husband in deliberate breach of the injunction made on 8 March 2004, acted in a manner inconsistent with the Court Orders of 8 March 2004, by remitting $180,000.00 which he had in his possession or power or control to [his aunt] in Switzerland through four different banks, namely:
(a) Commonwealth Bank… $50,000.00
(b) National Australia Bank… $30,000.00
(c) Bank of Western Australia… $50,000.00
(d) Challenge Bank… $50,000.00
…
3.The Respondent husband in deliberate breach of the injunctions made on 29 March 2004, failed, neglected or refused to direct [his aunt] by letter addressed to [his aunt] to return the money to the parties joint bank account…at the National Australia Bank…Western Australia.”
The contempt judgment
24. The trial Judge, at the commencement of her judgment, noted that the wife sought to have the husband dealt with for contempt as a result of non-compliance with orders of the Court of Petty Sessions, and that the wife asserted the husband’s conduct in breaching the orders amounted to a flagrant challenge to the authority of the Court. The trial Judge set out the background facts giving rise to the wife’s application.
25. After recording the procedural history outlined above, the trial Judge set out ss.112AP(1)(a) and (b) which are found in Part XIIIB of the Act. Her Honour also set out the meaning of the phrase “contravening an order” as defined in s.112AB(1) of Part XIIA of the Act.
The first allegation
26. The trial Judge set out the first allegation made by the wife. The transcript discloses she recorded the husband’s plea to this allegation pursuant to rule 21.08 of the Family Law Rules 2004 (“the Rules”). The husband agreed with the allegation.
27. In respect of the first allegation, namely, that the husband failed to disclose the address of each person named in the order on 8 March 2004, the trial Judge found she was satisfied beyond reasonable doubt that the husband intentionally failed to comply with the order. Her Honour then went on to examine whether the husband’s action constituted a “flagrant challenge to the authority of the Court” having regard to the principles enunciated in Ibbotson and Wincen (1994) FLC 92-496 at 81,162. In finding there was a flagrant challenge her Honour noted:
(a)the husband had not complied with the order;
(b)his conduct on the day of the order;
(c)he sat in Court on 8 March, 2004 knowing the information his counsel was giving to the Court was incorrect, and that the money was probably at that time in his possession; and
(d)he did not want anyone to contact his relatives until he had disposed of the funds he was holding.
The second allegation
28. The second allegation dealt with by the trial Judge was that the husband transferred $180,000 to his aunt in Switzerland on 10 March 2004 in breach of the injunction made on 16 February, 2004.
29. The husband’s response to this allegation recorded in the transcript was “Okay”, but he qualified this reply by saying his actions occurred before the order was made.
30. The trial Judge set out in the judgment the orders made on 16 February, 2004. Her Honour noted the breach alleged by the wife was contained in paragraph 2 of Minutes of Order attached to the orders of 8 March, 2004. Paragraph 2 restrained the husband from dealing with:
“each of the persons mentioned in paragraph 1 hereof in regard to the money he has transferred to each of them in any manner inconsistent with the orders made herein”.
The persons named in the paragraph 1 are members of the husband’s family. His aunt is not named in paragraph 1. At paragraph 29 of her reasons the trial Judge noted that other orders “made herein” which were relevant included orders as set out in paragraphs 1, 2 and 3 of the Minutes of Order Sought. The orders sought in the Minute are not set out in the trial Judge’s reasons. Paragraph 3 of the orders made provided:
“The parties be restrained by injunction and an injunction is hereby granted restraining both parties from disposing of, charging, or encumbering the proceeds in that account or from operating the said account, other than for the purpose of depositing the monies said herein save and except pursuant to an order of the Court.”
31. The trial Judge recorded at paragraphs 30 and 31 of the judgment her findings about the effect of the injunctions.
32. The trial Judge did not accept the proposition of the husband that he was not in breach of the orders. Her Honour found the husband was required “not to deal with the money in a manner inconsistent with the orders” and that he should have deposited the monies in the NAB account.
33. The trial Judge found she was satisfied beyond a reasonable doubt that the husband had contravened the orders as alleged, and made findings at paragraph 34 as follows:
“I am satisfied beyond a reasonable doubt that the husband has contravened the orders as alleged. I am also satisfied beyond a reasonable doubt that his actions in sending the money overseas to Switzerland, from which point he says the funds may not be recovered, was an action deliberately done by him to put the money outside the jurisdiction of the Court. In my view, this amounted to a flagrant challenge to the authority of the Court and the husband is guilty of contempt.”
The third allegation
34. The third allegation asserted by the wife against the husband was a breach of the injunction made on 29 March 2004 occasioned by the husband’s failure, neglect and refusal to send a letter to his aunt directing her to return the monies to the NAB account. The husband did not admit this allegation, but rather said he was unable to comply with the order as he did not have his aunt’s address and that he could not contact her.
35. The trial Judge noted the husband’s evidence in the proceedings before her was inconsistent with his evidence given before the Magistrate in the Court of Petty Sessions on 29 March, 2004 when he gave evidence that he had spoken to his aunt and given her instructions as to what to do with the monies.
36. The trial Judge made findings that the husband could contact his aunt, and that it was within his power to direct her to return the monies to Australia. Her Honour found she was satisfied beyond a reasonable doubt that the husband had deliberately failed to comply with the order of 29 March, 2004, and that this failure amounted to a flagrant challenge to the authority of the Court. Her Honour noted at paragraph 39:
“The husband himself agreed that he was well aware that the intention of the Court when it made orders on 8 March 2004 was to attempt to track the money down, keep it in Australia and have it placed in a joint account of the parties in order that it may be dealt with according to law. Despite being aware of the facts, the husband transferred it overseas with the instructions that it be withdrawn and transferred to another account. He now has no interest ensuring that it returns to Australia or directing [his aunt] to return it to this country.”
The sentencing judgment
37. At the conclusion of the hearing on 2 August, 2004 the trial Judge ordered the husband to surrender his passport, adjourned the matter to 6 August, 2004 when she published the contempt judgment, and then heard submissions from the parties in respect of sentence. On 2 August, 2004 the trial Judge told the husband that if the money was returned it would have a substantial effect on any term of imprisonment she may impose if she found the contempt proved. On that occasion, and on 6 August, 2004, the husband appeared in person. On 6 August 2004 her Honour explained the sentencing options open to her, and the husband acknowledged the trial Judge’s findings that he was guilty of contempt, but said he did not have his aunt’s address and “I cant get the money”.
38. In the ex-tempore sentencing judgment her Honour referred to the relevant provisions of s.112AP including ss.112AP(4),(6) and (7). In respect of the latter sub-section her Honour was clearly referring to s.112AP(2) which she set out in her reasons.
39. Her Honour noted correctly that neither the provisions of the Crimes Act 1917 (Cth) or the Sentencing Act 1995 (WA) were applicable to the punishment she could impose. Her Honour referred to the wide discretion available to a judge imposing punishment and cited Schwarzkopff and Schwarzkopff (1992) FLC 92-303.
40. The trial Judge referred to the principles enunciated in Tate and Tate (No 3) (2003) FLC 93-138 where the Full Court discussed the underlying purposes of contempt proceedings brought in respect of a monetary order, namely to coerce compliance and impose a punishment as both deterrence and retribution for a breach of the Court’s orders.
41. The trial Judge indicated that in imposing punishment she intended to construct an order which was directed at both punishment for disobedience of the order, and enforcement of the order. Her Honour referred to each breach of the orders by the husband and concluded at paragraph 9:
“It was not a matter of simply not complying with orders. This was a positive course of conduct by the husband designed to ensure that orders made by the Court would have no effect.”
42. Her Honour noted that a fine would not be appropriate, and that the imposition of a fine would only reduce the matrimonial pool. She set out her conclusions at paragraph 10 of her reasons as follows:
“In my view, there can be no alternative punishment but to imprison the husband. A fine would be totally inappropriate and in any event, would have the effect of diminishing the asset pool for distribution to the wife. The husband alleges that he has net assets, taking into account liabilities, of approximately $10,000. The wife has funds of approximately $17,000, excluding funds from the sale of the property. The funds from the sale of the matrimonial home amounted to approximately 233,000 (sic). As a result of the husband’s conduct, only $12,800 remains within the jurisdiction of the Court.”
43. At paragraph 11 of her reasons the trial Judge noted her previous advice to the husband that if the contempts were proved, and the funds forwarded to his aunt were returned she would consider it a “significant mitigating factor”. Her Honour then set out her reasoning for the term of the sentence she ultimately imposed as follows:
“It is important, in my view, to structure a sentence which will encourage the husband to ensure prompt return of the funds which have been sent to Switzerland and to appropriately punish him, both as a deterrent to himself, and others who may be tempted to follow his example.”
44. The trial Judge concluded the husband should be sentenced to a term of imprisonment for 18 months. Her Honour noted the provisions of s.112AP(7) and concluded at paragraph 12 of her reasons:
“If the husband took steps to ensure that the money was returned from Switzerland and placed into the joint account of the parties, then I would consider an application by the husband to discharge him before the expiry of the 18 month period. The key to a reduction in his sentence is in the husband’s hand.”
Relevant law - contempt
45. Part XIIIB, which deals solely with contempt, in its present form was inserted into the Act and became operational on 27 December, 2000. Section 112AP is the only section in Part XIIIB. The forerunner of the present section was inserted into the Act in 1989 by the Family Law Amendment Act 1988 which was enacted following a report by the Australian Law Reform Commission (Contempt ALRC 35 1987). Section 112AP provides:
“(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9) In this section:
order under this Act means an order under this Act affecting children within the meaning of Division 13A of Part VII or an order under this Act within the meaning of Part XIIIA.
46. The present rule (Rule 21.08 of the Rules) outlines the procedure for hearing, inter alia, a contempt application. It is in substantially the same terms as the former Order 35 rule 14.
47. In Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866 at 86,241, the Full Court described s.112AP, then Part of Division 3 of Part XIIIA after the 1988 amendments, “a complete code for dealing with contempts of the Court”. The Full Court affirmed the decision in Schwarzkopff (supra), noting that contempt under the Act does not constitute “an offence against any laws of the Commonwealth.” The Court accepted a submission that s.112AP, as it then was, constituted a self contained code, and general sentencing legislation, whether State or Federal, had no application.
48. Contempt under s.112AP must be proved beyond reasonable doubt (see s.141 of the Evidence Act 1995 (Cth) and the joint judgment of Ellis and Holden JJ. in Tate and Tate (2002) FLC 93-107 at 89,016, paragraph 75).
49. The principles underlying proceedings for contempt arising out of disobedience of order were recently review by the Full Court in Tate and Tate (No 3) (supra) at 78,299-78,300 as follows:
“57.Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, It is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
58.The majority of the Full Court (Ellis and Holden JJ) in the husband’s most recent appeal (SA 39 of 2001 delivered 30 May 2002) referred to the decision of the High Court in Witham v Holloway (1995) 183 CLR 525. In that case, in the joint judgment of Brennan, Deane, Toohey and Gaudron JJ, their Honours referred (at 530) to the distinction between civil and criminal contempt as being that a civil contempt involves disobedience of a court order in civil proceedings, whereas a criminal contempt involves either a contempt in the face of the court or an interference with the course of justice. They qualified this distinction by saying:
‘However disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.’
59.They further commented that the differences upon which the distinction between criminal and civil contempt are based are, in significant respects, illusory. In a separate judgment McHugh J expressed himself in similar terms on this issue.
60.In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) the purpose of proceedings for civil contempt was stated as follows:
‘Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.’
61.The Australian Law Reform Commission (“ALRC”) in its 1987 report Contempt (Report No. 35) pointed out (at par 508) that it is important to recall that proceedings for disobedience contempt may serve one or both of two distinct functions: enforcement of the order and punishment of disobedience of the order. It similarly drew a distinction between situations where the primary aim is coercive as distinct from punitive. In the former case, the sanction imposed is expressed only to last until the occurrence of a specific event that is within the power of the person upon whom the sanction is imposed. In the latter the punishment (if custodial) is imposed for a finite period, usually after the relevant events have occurred.
62.It should be mentioned that the ALRC, in Chapters 13 and 14 of its report, did draw a distinction between the considerations associated with non-compliance in family law and general civil law. We agree that there is a distinction and in particular that resistance to compliance with orders made in family law litigation may be particularly strong, as this case exemplifies. At par 623 the Commission took the view that the purpose of punishment in family law proceedings was not so much upholding the Court’s authority as an end in itself, but in fulfilling the expectations of the litigant’s themselves that Court orders will be obeyed and imposing sanctions if this does not occur. We agree with this view which accords with that expressed by Evatt C in G and G (1981) FLC 91-042 at 76,361.
63.At par 515 of the ALRC report, it is pointed out that there are many cases where the primary goal is to punish the contemnor for past disobedience. It is stated that the sanction serves similar purposes to those imposed by the criminal law: in particular, deterrence (specific and general) and retribution.
64.In this case, the primary aim of the proceedings is clearly punitive and it is clear from the authorities that this is an appropriate aim, at least in circumstances where there has been a flagrant defiance of court orders. In Borrie and Lowe The Law of Contempt (3rd Ed at 629) the following statement of principle appears:
‘Blatant and aggravated contempts particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark both of the gravity of the contempt and the court’s disapproval and to deter contemnors and others who might be tempted to breach such an order.’
See also Lightfoot v Lightfoot [1989] 1 FLR 414 at 416-417 per Lord Donaldson MR.
65.At pars 516-7, the ALRC pointed out that in the past there had been a reluctance on the part of courts to impose punitive sanctions in the case of mere disobedience in the absence of contumacy, that is, stubborn resistance and defiance of authority. The Commission suggested that this situation has changed in recent times and that courts have increasingly imposed punitive sanctions in cases of disobedience of court orders where there was no flagrant or repeated disobedience or overt challenge to the court’s authority. While this has no direct relevance to the present case, in that we are not dealing with mere disobedience of court orders, it highlights the seriousness of contumacious disregard and defiance of court orders.
66.At par 519, the Commission said in terms that might be thought to be highly relevant in the context of this case:
‘On the view just outlined (the need to uphold the authority of the Court), the imposition of punitive sanctions for disobedience is justifiable in terms of maintaining the effectiveness of court orders. In our society, courts are the ultimate arbiters of disputes. This system of dispute resolution depends upon, among other things, their making orders and, if necessary, enforcing them. Given that litigation can be frustrating, time consuming and costly, there would be no incentive at all in undertaking it, if there were no likelihood that orders made by the court in settlement of a dispute could not be enforced. The imposition of coercive sanctions is clearly directed towards this goal; the imposition of punitive sanctions re-inforces (sic) it .In circumstances where enforcement is no longer relevant, either because the order has since been complied with, or is no longer capable of being complied with, the imposition of a punitive sanction vindicates the claims of the aggrieved party, signifies the disapproval of the court, and acts as both as a specific deterrent (that is, to the particular contemnor) and as a general deterrent (that is to future would be contemnors). The Commission endorses the general principle that punitive sanctions should be available to the Court to the extent that they are necessary to uphold the effectiveness of court orders’.”
50. The contemnor’s conduct must constitute a flagrant challenge to the authority of the Court (see Ibbotson and Wincen (supra) at 81,162 and s.112AP(1)(b)).
Relevant law - appeals against discretionary orders
51. Notwithstanding this appeal involves the discrete issue of whether the sentence imposed by the trial Judge is excessive, it has to be remembered that this is an appeal against a discretionary order and as such it is limited in the way described by the High Court in the following passages from House v King (1936) 55 CLR 499 and Gronow v Gronow (1979) FLC 90-716:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (House v King per Dixon, Evatt and McTiernan JJ at 504-505)
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight” (Gronow v Gronow per Stephen J at 78,848-78,849).
52. Also apposite in this case are the remarks of the Full Court in Rutherford v Marshal of the Family Court of Australia (supra) at 86,244 where the Court adopted with approval the remarks of Jordan CJ. in R v Geddes (1936) 36 SR (NSW) 554 at 556 as follows:
“If no wrong principle has been applied, the position is somewhat analogous to that which arises when, in a case in which no definite measure of damages exists, it is contended, before a Court of Appeal, that damages awarded by the Jury are inadequate or excessive. It has been said that, in such a case, the rough rule is that the verdict should be set aside if the Court cannot find any reasonable proportion between the amount awarded and the loss sustained. The analogy is not exact; but I think that a Court of Criminal Appeal should intervene if the sentence appears to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial; but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses and, therefore, that he has had an opportunity of forming impressions which no perusal of the cold print can afford.”
Ground of appeal
53. The husband relies only on Ground 1 in his Notice of Appeal namely:
“The Learned Trial Judge erred in the exercise of her discretion under Section 112AP in sentencing the Appellant to a term of imprisonment which is manifestly excessive in the circumstances.”
54. The thrust of the husband’s counsel’s submissions in his summary of argument attacks the exercise of discretion by the trial Judge in imposing sentence in two broad areas:
(a)that the trial Judge’s reasons and order failed to address relevant sentencing principles by failing to make findings about the appropriate sentence for each of the three allegations found proven, and failing to indicate whether the penalty imposed was to be served cumulatively or concurrently. In summary it is asserted the sentencing procedure followed by the trial Judge lacked transparency; and
(b)that the trial Judge did not in her reasons engage in a discussion or comparison of other sentences imposed under the Act, and erred in determining a sentence outside the range of sentences imposed in similar cases.
55. We find it convenient to address issues relating to Ground 1 under the two broad areas identified by counsel for the husband.
Relevant sentencing principles - transparency of sentence
56. In considering this aspect of the husband’s submissions it is clear that it is appropriate for us to have regard to both her Honour’s contempt judgment as well as the sentencing judgment as to do otherwise would lack reality (see Fauna Holdings Pty. Ltd. and McGillivray and Ors v Mitchell (No 2) (2000) FLC 93-053 at 87,852, paragraph 72).
57. The trial Judge in hearing the contempt application followed the procedure laid down in rule 21.08 of the Rules. In her reasons for judgment her Honour set out each allegation and made findings to the criminal standard that is, she was satisfied, on the evidence, beyond reasonable doubt that the husband was guilty of the facts relied on in each allegation. Her Honour found:
·on 8 March, 2004 the husband had lied to the Court when he stated in his Affidavit that the funds were not in his possession, custody and control;
·the husband knew on 8 March, 2004 that his relatives were not holding funds;
·the husband deliberately failed to provide details of his relatives’ addresses in breach of the order because he did not want the wife’s solicitors to become aware that they were no longer in possession of the money which was by then held by the husband. If the wife’s solicitors were in possession of this information the husband may have been stopped from removing funds from Australia;
·the husband knew the purpose of the order made on 8 March, 2004 was to restrain his relatives or him in dealing with his relatives in a manner other than to return the funds to the parties’ joint account;
·on 16 March, 2004 the husband failed to disclose to the Court that he had transferred funds to Switzerland on 10 March, 2004;
·the husband’s action in transferring the funds to Switzerland constituted a dealing with the money in a manner inconsistent with the orders. At the time of the transfer by the husband he was aware his action was inconsistent with the Court orders;
·the husband lied at the hearing before the Magistrate on 25 March, 2004 when he told the Magistrate he did not know the name of the person to whom he had remitted funds in Switzerland;
·the husband gave evidence in the contempt application about his contact with his aunt which was inconsistent with his evidence before the Magistrate. In the contempt application he said he was unaware of his aunt’s address, that he had not spoken to her, but his mother had spoken to her and obtained her bank details. On 29 March, 2004 he gave evidence that he had spoken to his aunt and told her to transfer the money “somewhere else”; and
·the trial Judge was satisfied that the husband is well aware where his aunt can be contacted.
58. In her sentencing judgment her Honour noted at paragraph 5:
“The breaches of the orders set out in my judgment are serious and have to be looked at in light of the husband’s conduct. I stress that it is not the conduct overall which is being punished, but the breaches, but I cannot look at the breaches without looking also at the context in which those breaches occurred.”
Her Honour summarised her finding in paragraph 9 as follows:
“These are very serious matters. It was not a matter of simply not complying with orders. This was a positive course of conduct by the husband designed to ensure that orders made by the Court would have no effect.”
59. Counsel for the husband submits that her Honour “fell into error in her approach to sentencing”. He submits that the trial Judge did not:
“indicate how much in terms of time she was imposing for each count. Nor whether she was engaging in a cumulative or concurrent exercise.”
It is further submitted on the husband’s behalf that:
“It is undesirable for the sentencing Judge to have regard only to the total effective sentence to be imposed on an offender. The preference should be the practice (not necessarily immutable) of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency and totality”.
He further refers to the need for transparency at the penalty stage and refers to the decisions of the High Court of Australia on sentencing in criminal cases (Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 205 ALR 346).
Sentencing principles under the Family Law Act and the general criminal law
60. Section 112AP(1) provides that the section is applicable to:
“a contempt of court that
…(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court”.
The Rules, whilst requiring an allegation to be put to the party alleged to have acted in flagrant breach of the Court’s order, are silent as to the mode of sentencing. Section 112AP(3), construed in its ordinary meaning, does not provide for the making of rules of Court to deal with sentencing. Section 112AP gives a wide discretion to the Court on imposing sentence. The section does not impose limits on the length of a sentence of imprisonment which may be imposed although punishment may be on terms, a suspended sentence imposed, or the Court may order the discharge of a sentence prior to the expiry of a term of imprisonment (cf. Contempts of Court Act 1981 (U.K.) s.14(1) where the maximum sentence for a contempt is confined to two years). The section does not specify whether a “global” penalty may be, or should be, imposed for more than one offence, or whether multiple allegations, if proved, should be subject of discrete sentences including imprisonment to be served either concurrently or cumulatively.
61. In an early decision under s.108 of the Act, the forerunner to s.112AP, in Cummings and Cummings (1976) FLC 90-100 the Full Court dealt with the appropriate manner of sentencing at 75,461 as follows:
“It seems that the emphasis on particular ‘charges’ or ‘counts’ was to protect the interests of the husband, and to ensure that he knew precisely what was alleged against him, what case he had to meet, and how his Honour assessed the relative gravity of each offence. However, the penalty imposed serves more than one purpose – it is to ensure compliance with the court’s order in future as well as to punish for past breaches. To meet these ends it would be preferable to consider the penalty globally.”
That approach has not been uniformly followed in later cases, and in particular since the enactment of Division XIIIB. In more recent cases, where trial Judges have followed sentencing procedures akin to those applied under the general criminal law, no criticism has been raised on appeal about the practice of sentencing on each charge (see Fauna Holdings Pty. Ltd. and McGillivray (supra); Tate and Tate (No 3) (supra)). As the global approach adopted by the trial Judge in this case is the subject of challenge, we examine later the question of whether, in the absence of specific provisions in the Act and the Rules, s.112AP(1)(b) requires separate punishments for each count or allegation proved, and/or whether the general principles applied in sentencing following the decision of the High Court of Australia in Pearce (supra) are relevant in imposing a custodial sentence under Part XIIIB.
62. The learned authors of “Sentencing Law in NSW” (Butterworths) at paragraph 01-020 describe a “sentence” as:
“an order which definitively disposes of the consequences of the conviction or is a definitive decision by a sentencing judge on the punishment or absence of it which is to be the consequence of the conviction imposed upon the offender: Griffiths v R (1977) 137 CLR 293; 15 ALR 1; R v Warfield (1994) 34 NSWLR 200; 73 A Crim R 516; BC9405293. In relation to a sentence of imprisonment it includes the total penalty, that is, the time to be spent in custody and that subject to parole: R v Jensen (1996) 87 A Crim R 241; BC9602493.”
At paragraph 01-030 the authors further set out the effect of the principles set out in Pearce (supra) as follows:
“A fundamental principle of sentencing is that sentencing does not involve precise mathematical formulae nor admit of a single correct answer. However, when a sentencer is required to sentence an offender in relation to more than one offence the sentencer must: (i) impose a sentence in relation to each offence; (ii) then consider whether the sentences should be cumulative or concurrent or partly cumulative and partly concurrent; (iii) then consider the question of totality” [citations omitted].
63. In Pearce (supra) the offender was charged with one count of maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm, and breaking and entering into a dwelling house and whilst there inflicting grievous bodily harm on the same victim as referred to in the first count. The Court examined whether the sentence imposed involved elements of “double jeopardy”, or to the extent that there were common elements, whether the sentence imposed could lead to punishing the offender twice for the commission of the common elements. McHugh, Hayne and Callinan JJ. held at 623:
“40To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.”
Their Honours then went on to consider whether, if an order was made for sentences imposed to be served concurrently it was of consequence and held at 623-624:
“45 To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
47 Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
48Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences” [footnotes omitted].
64. Pearce (supra) was considered and applied by the High Court of Australia in Johnson v The Queen (supra), where Kirby J. commented in relation to the sentencing process at 359, paragraph 41 as follows:
“I remain of the view that proper procedure in judicial analysis — and in some cases statutory provisions — require the process of reasoning to be performed in stages. In my opinion, Pearce says as much. The issue is, therefore, whether that process of reasoning should be secret and undisclosed or as transparent as the court can make it for the prisoner, the community and the appellate court to view, criticise and where appropriate, to correct. A so-called ‘instinctive synthesis’ can become a hiding place for legal error, prejudice and sloppy work in a matter touching liberty where correctness of approach, transparency of method and manifestly just outcomes are specially desirable. Before the great advances in administrative law that were such an important development in legal doctrine in the twentieth century, there were similar controversies in that field. Judges accept a higher duty of reasoned justice, as this court has affirmed. The court should adhere to that approach” [footnotes omitted].
65. In imposing punishment under s.112AP the trial Judge clearly distinguished each of the breaches of orders found proved. Her Honour found it would be artificial to look at the breaches in isolation but rather that they should be looked at in the context in which they occurred. That context was set out in the contempt judgment, namely that the Court orders were designed “to track the money down, keep it in Australia and have it placed in a joint account of the parties in order that it may be dealt with according to law” and that husband’s actions were designed to put the net proceeds of sale “outside the jurisdiction of the Court”.
66. We turn then to the question of whether in proceedings under Part XIIIB sentencing principles apposite to the general criminal law, but not as modified by various criminal law statutes, should apply.
67. It is clear that the Parliament intended that Part XIIIB should form a complete code for dealing with contempts (see Rutherford (supra)).
68. Section 112AP does not refer to the imposition of a sentence, but “punishment”. It is clear that whilst a punishment imposed may be a term of imprisonment to be served in a State prison, that general legislation, whether State or Federal, relating to the sentencing of offenders, can have no application (see Rutherford (supra)). These matters, prima facie, indicate that general sentencing principles do not apply under s.112AP. This reasoning is consistent with the view taken by the Full Court under the former s.108, namely that the purpose of separate allegations or “counts” has its genesis in the tenets of natural justice so that a party is, given the serious consequences of a breach if found, fully aware of the particulars of the allegation made against him or her (see Cummings (supra); Australasian Meat Industry Employees Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98 at 116).
69. The distinction between a contempt and a criminal offence was considered by the Full Court in K and J (2004) FLC 93-177. The Full Court held at 79,009-79,010:
“68. In our view, the fact that a person is found guilty of a contempt by reason of disobeying an order of this Court, is not to be equated to a conviction for a criminal offence, even where the conduct complained of constitutes both the offence and the contempt.
69. The reason is that the purposes of the criminal law are of necessity different from the purposes of the law of contempt and although the conduct in question may be identical, each branch of the law may regard its nature and gravity quite differently.
…
71.The purpose of the law of contempt is to require compliance with orders of the Court and to punish non-compliance where appropriate. Conduct involving non-compliance with a Court order may be of a much more serious nature for the purposes of the law of contempt than it is for the purposes of the criminal law, and vice versa.”
70. The Court also rejected a submission made on behalf of the appellant, who had been found guilty of contempt by the trial Judge, that the Court should require the prosecution of contempt allegations to be subject of guidelines similar to those adopted in the criminal law. The Court noted the remarks of the majority of the High Court of Australia (Brennan, Deane, Toohey and Gaudron JJ.) in Witham v Holloway (1995) 183 CLR 525 at 534 that:
“…to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge”,
hence such trials are not to be conducted as jury trials.
71. In other jurisdictions, the principle that criminal sentencing principles and legislation are applicable when imposing a sentence of imprisonment for both civil and criminal contempts has been adopted, particularly following the decision in Witham v Holloway (supra) (see Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 at paras 38 to 45 per Studdert J.; Ryan v Wright (No 2) [2004] NSWSC 1019 per Gzell J. and Australian Securities and Investments Commission v Michalik (aka Tomaszewski and Krawczyk) [2004] NSWSC 1259 at paragraph 26). The correctness of such an approach was doubted by Handley JA. and Powell JA. in Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 in judgments published prior to the High Court of Australia’s decision in Witham v Holloway (supra). In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 484-485 Kirby J., whilst in dissent on the principal jurisdictional issue, in discussing whether the sentence imposed by the Court of Appeal in respect of a civil contempt was excessive held:
“147In approaching this submission, it is essential to remember a number of general propositions which govern punishment for contempts of the kind in question here where the punishment is not limited by statute but is at large. In determining the order which is appropriate to the contempt found, the Court must take into account those general principles which govern the sentencing of persons convicted of criminal offences which are apt to the peculiar character of contempt [our emphasis]. The underlying purpose of the law on this form of contempt is to vindicate the due administration of justice. Contempts of the kind illustrated in this case may be technical, wilful but without a specific intent to defy the authority of the Court and contumacious. In the last category a serious act of deliberate defiance of judicial authority is evidenced.
148Conceding that such categories of contempt may sometimes overlap, in a case of a technical contempt, where the contemnor has offered an apology which the Court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court’s orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.
149Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law may result”. Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner” [footnotes omitted].
72. The decisions in New South Wales have, however, turned in part on the interpretation of the Supreme Court Rules. Rule 55.13(1) provides:
“Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both”.
This Rule was seen as consistent with the wording of the now repealed Sentencing Act 1989 (NSW).
73. It is clear that at least part of the reasoning underlying the principles enunciated in Pearce (supra), and confirmed by later decisions, is to permit transparency of sentencing, and to avoid double punishment. Later decisions have also had regard to the difficulties in fixing sentences where there are, for example, up to 25 separate charges, and in the calculating of commencing and concluding times of sentences with the imposition of cumulative sentences for some groups of offences and concurrent sentences for other groups of offences. Judicial Officers imposing sentence in criminal matters must also have regard to relevant sentencing legislation, and the fixing of parole dates. These latter issues are not generally relevant to sentencing under s.112AP, and do not support the argument that general sentencing principles should be mandatory.
74. Other decisions of the High Court of Australia, the Federal Court of Australia, and this Court give some weight to the husband’s submission that applying the Pearce (supra) principles in imposing punishment may in some cases be appropriate in the exercise of discretion, having regard to the findings of the High Court of Australia in Witham v Holloway (supra), and the discussion of that case in Tate and Tate (supra) at 89,010-89,011, and in particular the passage set out in paragraph 43 from Witham v Holloway as follows:
“The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt ‘must realistically be seen as criminal in nature’. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.”
75. An examination of recent decisions of the Federal Court of Australia in imposing sentence in contempt cases discloses the practice of separate charges which when proven have resulted in the imposition of both “global” sentences, and the imposition, in appropriate cases, of individual sentences for discrete breaches of orders. In Australian Securities Commission v Macleod (No 3) (1993) 40 FCR 475, Drummond J. noted at 481:
“I refer, as to the court's power to make a cumulative order of imprisonment in a contempt case, to the decision of the Court of Appeal in Lee v Walker [1985] QB 1191, particularly at 1201-1202, wherein it is made clear that the High Court in the United Kingdom has always had jurisdiction to impose what are called consecutive sentences of imprisonment in any appropriate contempt case. This Court, in my view, has no less power than that. I also refer to Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, particularly at 114, for the proposition that a superior court has a wide range of remedies available to it in dealing with contempts.”
In Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1998] 1441 FCA (6 November, 1998) Drummond J. imposed a global sentence of two months in respect of a number of breaches of orders. In Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1999] FCA 585 (7 May, 1999)Kiefel J. imposed a global sentence of six months on a company director for approximately 33 breaches by a corporation, of which he was a director, of injunctions. On appeal (Hudson v Australian Competition and Consumer Commission [1999] FCA 891 (2 July, 1999)) the Full Court of the Federal Court of Australia in dealing with an appeal on severity of sentence upheld the trial Judge’s sentence.
76. On a practical level, support for imposing separate punishments for each allegation proved is found in the approach adopted by Murray J. in dealing with the contempts in Tate and Tate (No 3) (supra), where the Full Court noted at 78,299:
“In determining that the sentences should be imposed cumulatively, her Honour took the view that to have them run concurrently would in effect mean that no punishment at all would be imposed in relation to charge 12”.
77. Whilst the Act (and the Rules) do not impose any procedural requirements for imposition of punishment, it appears to us there are sound policy reasons, in some cases, particularly as the Rules require the particularisation of allegations, for the application of the principles analogous to those enunciated in Pearce (supra) and expanded by Kirby J. in Johnson (supra).
78. We find the reasoning of Kirby J. in Johnson (supra) set out above highlights the need for care and transparency in sentencing. In so finding we are cognizant that in some cases the allegations may, if proved, contain common elements, and that care must be exercised to ensure a contemnor is not subject to double sentencing in respect of contempts. In so finding we distinguish the latter situation from one which may involve both contempt and a breach of the criminal law (see K and J (supra)). By following the sentencing principles enunciated in Pearce (supra) in an appropriate case a trial Judge will clearly manifest his or her reasons for the punishment imposed for each allegation, and then in reviewing the sentence, have regard to the totality of the punishment imposed, resulting in a structured and transparent exercise of discretion. Kirby J’s reasoning reflects the serious consequences of finding a criminal offence proved or by analogy, a contempt proved beyond reasonable doubt, namely the depravation of liberty by the imposition of a custodial sentence.
79. Whilst noting the criteria identified as relevant in dealing with punishment for contempt associated with a parenting order in Cummings (supra) at 75,462, we find the criteria referred to in Australian Securities and Investments Commission v Michalik (supra) by Palmer J. of potential relevance in determining punishment for contempt of an order involving property or fiscal provisions. His Honour adopted with approval criteria for consideration in imposing sentence used in an earlier case of criminal contempt, noting these criteria had wider utility, and referred to the use of similar criteria in considering penalty by Spender J. in Australian Competition and Consumer Commission v World Netsafe Pty. Ltd. (2003) 133 FCR 279. The criteria identified by Palmer J. at paragraph 29 are:
“i)the seriousness of the contempt proved;
ii)whether the contemnor was aware of the consequences to himself of what he proposed to do;
iii)the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;
iv) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 166;
v)the reason or motive for the contempt;
vi)whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;
vii) whether there has been any expression of genuine contrition by the contemnor;
viii)the character and antecedents of the contemnor;
ix)what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court;
x)what punishment is required to express the Court's denunciation of the contempt.”
80. We are satisfied however that as Division XIIIB is a complete code, and because State and Federal sentencing laws do not apply, that following the procedure outlined in Pearce (supra), whilst it is likely to lead to a well structured, transparent sentence, is not mandatory in dealing with contempt under the Act and that the wide ranging discretion on sentencing should not be so restricted.
Does the failure of the trial Judge in this case to impose separate punishments for each allegation constitute an error of law?
81. We have already referred to the fact it is appropriate in considering this question to have regard to both the contempt judgment and the sentencing judgment.
82. There is no challenge to her Honour’s findings in respect of the three contempt allegations which she found proved beyond reasonable doubt. These allegations are set out in the sentencing judgment as separate and discrete offences i.e.:
·a failure by the husband to provide the addresses of family members;
·in dealing with the sum of $180,000 inconsistently with orders of the Court by transferring the money to Switzerland; and
·failing to give a direction to his aunt to return the funds to Australia.
83. Her Honour was satisfied beyond reasonable doubt that the allegations were proved, although she did not specify individual punishments and whether such individual punishments should be served concurrently or cumulatively. It is apparent from her Honour’s reasoning in paragraphs 5 and 9 of the sentencing judgment she had regard to the individual breaches, but also the context in which the breaches occurred, these breaches forming a positive course of conduct by the husband.
84. We also note that the wife’s legal representative did not bring the decision in Pearce (supra) to her Honour’s attention, and in fact confused the sentencing provisions in s.112AE for contravention under s.112AD with the provisions of s.112AP.
85. In summary, we are satisfied that, in dealing with contempts under s.112AP, the following factors are relevant:
·The Division provides a code for dealing with contempt under the Act.
·A trial Judge must comply with the procedure set out in Rule 21.08 on hearing the application.
·The allegation must be proved beyond reasonable doubt (s.141 of the Evidence Act 1995 (Cth)).
·The procedure is a summary one, conducted in accordance with the Rules and the guidelines for the conduct of a criminal trial do not apply.
·If a custodial sentence is to be imposed, transparency in the sentence imposed will be afforded in an appropriate case if general criminal law sentencing procedures are adopted including imposing sentence for each offence to be served either cumulatively or currently, but such procedure is not mandatory;
·State and Federal sentencing laws have no application;
·In imposing penalty reference to relevant factors to be considered provides a useful framework, but ultimately the penalty should be structured having regard to the individual facts of the particular case.
86. Having regard to our conclusion that the application of the Pearce (supra) principles is not mandatory, we find no error in the exercise of discretion by the trial Judge in the circumstances of this case in imposing a “total” sentence of eighteen months, having regard to the fact that the allegations formed “a positive course of conduct by the husband designed to ensure that orders made by the Court would have no effect”. We are satisfied that the deficiency of which the husband complains, namely the imposition of discrete sentences for each breach, does not, in the factual circumstances of this case, violate the proper exercise of discretion of the trial Judge in imposing the punishment.
Severity of sentence
87. The husband’s counsel submits that the sentence of 18 months imposed by the trial Judge is manifestly excessive, particularly having regard to other custodial sentences imposed under the Act. Counsel for the husband provided a schedule of a number of cases dealing with contempts setting out details of the sentences imposed. He noted the twofold nature of sentencing, and conceded that in circumstances such as the instant case where the husband remained in contempt it was open for an indefinite sentence to be imposed as noted in Australian Meat Industry Employees Union (supra) at 114 as follows:
“In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae” [citation omitted].
See also Ascot Investments and Harper and Harper (No 3) (1982) FLC 91-253.
88. The husband’s counsel further submits that in her sentencing judgment the trial Judge carried out no analysis of other cases and sentences imposed.
89. We have already noted that it is appropriate to have regard to both the contempt and the sentencing judgments in dealing with the issues raised in this appeal. We are satisfied that her Honour, whilst not specifically analysing previous judgments in her ex tempore sentencing reasons, had due regard to relevant principles in the exercise of her discretion in imposing sentence including principles enunciated in Schwarzkopff and Schwarzkopff (supra) and Tate and Tate (No 3) (supra).
90. In her contempt judgment the trial Judge referred to the decision of the Full Court in Ibbotson and Wincen (supra). The Court in that case set out a number of previous cases dealing with length of sentence, and noted that a sentence of 12 months imprisonment should be regarded as moderate where the husband had retained a child overseas in breach of an order of the Court.
91. In the sentencing judgment the trial Judge referred to the fact she had told the husband on 2 August, 2004 that if the funds forwarded to his aunt were returned she would consider it to be a significant mitigating factor in imposing sentence and noted in the sentencing judgment “To date this has not occurred”. Her Honour noted in structuring the sentence to be imposed she sought to “encourage” the husband to ensure the prompt return of the funds to Australia. The trial Judge also noted the ability of the husband to apply under s.112AP(7) for a discharge of her order before the expiry of the term of imprisonment.
92. In [N] and [N] (unreported, Coleman J, 7 May, 1993) Coleman J. in dealing with an application for contravention under s.112AD imposed a custodial sentence of 9 months. The husband was found to be in breach of an order that he pay the wife $26,000. The husband had, at the time of making consent orders, an entitlement to $82,000. His evidence was that he spent the majority of this sum paying for services provided by a massage parlour. The husband’s evidence was confirmed by an independent witness. The trial Judge found the husband was a man of good character, that the matter bringing him before the Court was completely out of character, and that he had no criminal record. In fixing the sentence Coleman J. noted in mitigation that the husband had pleaded guilty to the charge which was indicative of contrition, and did not put up a sham or spurious defence in excuse for his actions. He further noted, but for those factors, he would have sentenced the husband to the maximum period permitted under the Act of 12 months. Coleman J. noted at 22:
“The object of sentencing Mr [N] is twofold. Firstly, to endeavour if notwithstanding all the opportunities he has had to date he can attempt and do something to make good his breach to bring about compliance with the order. I accept that his imprisonment serves little useful purpose. The second aspect of his imprisonment is, of course, to leave him and others in no doubt that the orders of the court will be obeyed and that those who choose not to will suffer the consequences.”
93. A number of U.K. cases have dealt with sentences imposed for breach of monetary orders or injunctions including Lightfoot v Lightfoot [1989] 1 FLR 414 and Burton v Winters and Another [1993] 3 All ER 847. In former case the husband was restrained from dealing with any monies he had received during matrimonial proceedings or was about to receive, which instead he was ordered to pay into a joint bank account. The husband failed to pay the funds into the account, and dissipated the majority of the funds of 30,000 pounds allegedly by gambling. Gibbon J. imposed a custodial sentence of 18 months imprisonment, which was upheld by the Court of Appeal. In Burton v Winters (supra) there was an appeal against a sentence of two years imprisonment. Lloyd L.J. with whom Connel J. agreed held at 850:
“The sentence undoubtedly contains a punitive element for the serious and repeated breaches of the injunctions granted on 21 April and 17 July 1992. It also contains a coercive element, (see Lightfoot v Lightfoot [1989] FCR 305). The defendants are entitled to the protection of the law and the court must do its best to provide such protection by coercing the plaintiff in the only way it can. She has been given every chance and afforded every indulgence but all to no avail.”
94. We note that sentencing for contempt involves a consideration of the individual circumstances of the particular case. We agree with the comments of Palmer J. in Australian Securities and Investments Commission v Michalik (supra) at paragraph 49 that:
“review of the punishments in other cases is of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts.”
In this case we are satisfied that the trial Judge considered and applied relevant principles when determining the sentence of 18 months. There were no mitigating factors in the husband’s favour which required consideration, and the husband remained in breach of the order he contact his aunt at the time of sentencing and when the matter came before us when he sought that we should re-exercise the discretion and reduce his sentence.
95. The trial Judge clearly structured a sentence with a strong coercive element. She did so against a background of findings that in removing the $180,000 the only funds remaining in Australia totalled $12,850, and that the husband knew how to contact his aunt but had failed to do so.
96. Whilst we find the sentence is a significant one, we are cognisant that the trial Judge could have imposed, in the circumstances of this case, an indefinite sentence. We find no error of principle by the trial Judge, or failure to consider any relevant matter in fixing the sentence imposed. Accordingly the appeal should be dismissed.
ORDERS
1. That the appeal be dismissed.
I certify that the preceding 96 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.
Associate
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