Armidale Local Aboriginal Lands Council v Moran (No 2)

[2019] NSWSC 1739

Supreme Court

New South Wales

Medium Neutral Citation:

Armidale Local Aboriginal Lands Council v Moran (No 2) [2019] NSWSC 1739

Hearing dates:

5 December 2019

Decision date:

05 December 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Declare that the defendant is guilty of contempt as set out in the statement of charge attached to the notice of motion filed on 27 February 2019 (the statement of charge).

 

(2) Order that Kerry Moran be convicted of criminal contempt of the orders made by Schmidt J on 20 July 2018 as alleged in the statement of charge.

 

(3) Sentence Kerry Moran to a term of imprisonment of 14 days to commence on 5 December 2019 and expire on 18 December 2019.

 (4) Note that Ms Moran will be entitled to be released on 18 December 2019.

Catchwords:

CONTEMPT – criminal contempt – contumacious breach of orders – refusal to vacate premises owned by plaintiff scheduled for demolition

  CONTEMPT – criminal contempt – penalties – imprisonment – no other penalty appropriate in the circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases Cited:

Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133
Lewis v Ogden (1984) 153 CLR 682; [1984] HCA 26
Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220

Category:

Principal judgment

Parties:

Armidale Local Aboriginal Lands Council (Plaintiff)
Kerry Archibald Moran (Defendant)

Representation:

Counsel:
D Eardley (Plaintiff)
Defendant (self-represented)

  Solicitors:
Legal Minds (Plaintiff)

File Number(s):

2018/213158

Judgment: EX TEMPORE

Introduction

1. Armidale Local Aboriginal Lands Council, the plaintiff (the Council), charges Kerry Moran, the defendant, with criminal contempt. The background to the charge is as follows.

The facts

2. The Council owns property in Long Swamp Road, Armidale, on which a two-storey building is located (the Premises). The Council wishes to demolish the Premises and use the land to construct suitable accommodation for members of the Indigenous community in the area who are in need. Ms Moran lives on the Premises.

3. By statement of claim filed on 11 July 2018 the Council sought a declaration that Ms Moran had no right to remain on the Premises. The matter was heard by Schmidt J on 17 and 19 July 2018. On 20 July 2018 her Honour made the declaration sought and ordered that Ms Moran be restrained from entering the Premises and that she give vacant possession of the Premises within 5 days: Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133.

4. On 30 July 2018, Sheriff’s officers went to the Premises to evict Ms Moran, who was not there at the time of their visit although she remained in occupation. They posted an eviction notice on the door of the Premises and signed the Premises over to the Council. On 31 July 2018, contractors engaged by the Council went to the Premises to demolish them. They found Ms Moran there. The police were called to remove her from the Premises but she informed them, in effect, that she was appealing against the orders of Schmidt J and that, accordingly, they had no right to dispossess her. Efforts to ascertain whether Ms Moran had appealed against Schmidt J’s decision revealed that no documents had been filed. However, the Sheriff was loath to proceed while there was, according to Ms Moran, an appeal pending.

5. On 3 August 2018, Ms Moran was charged with remaining on inclosed lands. The Court Attendance Notice gave the following details of the offence:

“Inclosed Lands Protection Act 1901, section 4(1)(b)

Remain on inclosed lands

Between 10.00am on 26/07/2018 and 3.25pm on 3/08/2018 at Armidale

Did remain on the inclosed lands of the Armidale Aboriginal Land Council situate at [the Premises] after being requested by the legal representative of the owner of the said lands to leave those lands.”

6. Notwithstanding the charge, Ms Moran failed to vacate the Premises. On 28 February 2019 the Council filed a notice of motion seeking a declaration that Ms Moran was guilty of contempt as set out in the statement of charge and an order that she be punished for contempt. The notice of motion was listed for hearing before me on 5 June 2019.

7. On 4 June 2019 Ms Moran filed a summons for leave to appeal against the orders of Schmidt J. Because of the timing of the leave application, I stood over the Council’s notice of motion. The leave application was heard on 5 September 2019 and dismissed on 10 September 2019: Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 (Macfarlan and Payne JJA).

8. On 10 October 2019 I listed the Council’s notice of motion for hearing on 5 December 2019. On 10 October 2019 Ms Moran appeared by telephone. I explained to her that the Court has power to put someone in gaol if the person is found to be in contempt and that she should appreciate that contempt of court was a very serious matter. I warned her that it was possible that a custodial sentence would be imposed if she did not vacate the Premises. That afternoon, Ms Moran telephoned the Council’s solicitors and told them that she wanted to move out of the Premises. On 14 October 2019 Ms Moran delivered a hand-written letter to the Council’s solicitors informing them that she was moving out of the Premises that day and would like to move to Premises in Morris Street. Notwithstanding this communication Ms Moran remains in the Premises for the reasons which I will refer to later.

9. On 16 October 2019, after a hearing in the Local Court, Ms Moran was found not guilty, as a consequence of which the charge referred to above was dismissed. The evidence before me does not establish the reasons for the dismissal of the charge. However, Mr Eardley has informed me that the dismissal was the consequence of the magistrate’s reservations about the location and extent of the inclosure of the land on which the Premises were situated.

10. On 5 November 2019 Ms Moran provided to the Council a document from Energy Australia dated 31 October 2019 entitled “Disconnection Warning Notice” which indicated that electricity was still being used at the Premises.

11. On 27 November 2019 Ms Moran informed my Associate that she was not able to come to Court on 5 December 2019. I understood from correspondence between my Associate, Ms Moran and the Council that the Council did not oppose Ms Moran appearing by Audio-Visual Link (AVL) as long as the Council’s witness, Inspector Best, could give his evidence by AVL. Accordingly, I acceded to this application. Ms Moran appeared by an AVL in the precincts of the Armidale Court House.

Consideration

12. It is well established that the criminal standard of proof applies to a charge of criminal contempt.

13. There is no issue that Ms Moran has remained living in the Premises for the last three and a half years. She has no right to do so. The Council’s evidence established her continued occupancy and she admitted as much in the hearing on 5 December 2019. Although she was not convicted of the charge of remaining on inclosed lands, there was no dispute about her continued occupation of the Premises which were the subject of the orders of Schmidt J.

14. In essence, Ms Moran contended that, as she was Aboriginal, the Council had an obligation to look after her, protect her and provide her with suitable accommodation. She submitted that the Council, as part of this obligation, was required to renovate the Premises, which, according to Ms Moran, had previously been used for office accommodation, to make them more suitable for her occupation. She indicated that she was prepared to vacate the Premises for a short period to enable the Council to renovate them because she accepted that works needed to be performed to improve them. She contended that, because of the connection which she and her family retained with the land on which the Premises stood, the Council had no right to demolish them. She relied on a hand-written document which she submitted amounted to permission from the Council to stay on the Premises.

15. Ms Moran also emphasised that she had been prepared to move out of the Premises on 14 October 2019 but had changed her mind since the alternative premises in Morris Street offered to her by the Council had been allocated to another family, whose own home had been burned down and whose need was thereby presumably thought to be greater. She informed me that the Council had not fulfilled its duty to house her in suitable premises and that this justified her non-compliance with the Court’s order. Although she informed me that she would vacate the Premises today, she indicated that she would only do so if the Council had suitable accommodation ready for her to move into. Mr Eardley informed me that Ms Moran has not applied for any other accommodation and that none under the control of the Council is presently available to her. He said that refuges and other emergency accommodation were available in the area.

16. Ms Moran’s disobedience to the Court’s orders has been both deliberate and persistent. She does not accept the authority of the Court and insisted in her submissions that her alleged right to occupy the Premises overrode the Court’s orders to the contrary. I am satisfied beyond reasonable doubt that she is guilty of criminal contempt as charged.

Penalty

17. The power to punish for contempt is exercised to vindicate the integrity of the court and of its proceedings: Lewis v Ogden (1984) 153 CLR 682 at 693 (Mason, Murphy, Wilson, Brennan and Dawson JJ); [1984] HCA 26.

18. Mr Eardley contended that the only appropriate punishment for this contempt was incarceration. He informed me that the Council proposes to demolish the Premises and has scheduled the works to commence on Thursday 12 December 2019 and expects that they will be completed within 2-3 days. He contended that the works could not be completed unless Ms Moran was absent from the Premises.

19. He submitted that other possible sentences, such as the imposition of a bond, a fine or intensive correction order, would not be appropriate, having regard to the nature of the contempt, its circumstances and Ms Moran’s limited financial means. He submitted that a custodial sentence was necessary not only to vindicate the court but also to ensure that Ms Moran was out of harm’s way when the demolition works were undertaken. He contended that there was little utility in having the Sheriff come to the Premises to force Ms Moran to vacate them because there was such a strong likelihood that she would return so as to make the process futile. I understand that the Premises are not particularly secure and that, accordingly, there would be no means to “change the locks” to exclude her from the Premises.

20. Ms Moran did not specifically address me on sentence although she was invited to do so. She reiterated the submissions referred to above, which I have rejected, as to why she was justified in remaining in the Premises.

21. Having regard to the evidence, the length and nature of Ms Moran’s unpurged contempt, I am satisfied, having considered all possible alternatives, that it is necessary to impose a custodial sentence: s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). No penalty other than imprisonment is appropriate.

22. The purposes of sentencing include: to ensure that the offender is adequately punished for the offence; to make the offender accountable for her actions; to denounce the conduct of the offender; and to recognise the harm done to the community by the crime: s 3A of the Crimes (Sentencing Procedure) Act. In the present case, the crime of contempt has been committed. The harm directly affects this Court because Ms Moran has contumaciously disregarded the Court’s orders and refused to comply with them. The excuses she has given for non-compliance are baseless and founded on a series of fictions. It is also important that the Premises be vacated in order that the Council, which is also a victim of the offence, can use them for the intended purpose.

23. I am satisfied that a short sentence is sufficient both to vindicate the Court’s processes and to fulfil the other purposes of sentencing. As the sentence which I propose to pass is for a term of imprisonment for less than 6 months, I am obliged to make a record of my reasons for deciding that no penalty other than imprisonment is appropriate, and my reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation: s 5(2) of the Crimes (Sentencing Procedure) Act. As I have said, the particular contempt is the refusal to vacate the Premises which are now, and have long been, scheduled for demolition. Thus, to impose a fine, a bond or program for treatment or rehabilitation or other intervention would not fulfil any of the important purposes of sentencing in the present case. In particular no other alternative would be either sufficient to punish Ms Moran or to vindicate the Court’s processes; or effective to deter Ms Moran from returning to the Premises which she regards as her home. There would be no utility in imposing a fine on someone with apparently limited financial means.

24. For the reasons given above, I make the following orders and notation:

1. Declare that the defendant is guilty of contempt as set out in the statement of charge attached to the notice of motion filed on 27 February 2019 (the statement of charge).

2. Order that Kerry Moran be convicted of criminal contempt of the orders made by Schmidt J on 20 July 2018 as alleged in the statement of charge.

3. Sentence Kerry Moran to a term of imprisonment of 14 days to commence on 5 December 2019 and expire on 18 December 2019.

4. Note that Ms Moran will be entitled to be released on 18 December 2019.

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Decision last updated: 06 December 2019