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ASIC v Sigalla (No 5)

ASIC v Sigalla (No 5)

Case [2012] NSWSC 82 28 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: ASIC v Sigalla (No. 5) [2012] NSWSC 82
Hearing dates: 5 May 2011; 1 June 2011 and written submissions on 15 and 16 June 2011
Decision date: 28 February 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [86] of judgment.

Catchwords: CONTEMPT OF COURT - sentencing - findings of fact relevant to defendant's motives for breaching court orders - sentencing considerations addressed - community service ordered
Legislation Cited: Civil Procedure Act 2005
Crimes (Sentencing Procedure) Act 1999
Australian Securities and Investments Commission Act 2001 (Cth)
Crimes (Sentencing Procedure) Act 1999
Corporations Act 2001 (Cth)
Cases Cited: ASIC v Sigalla (No. 4) [2011] NSWSC 62
Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912
R v Bottin [2005] NSWCCA 254
Curtis v R [2007] NSWCCA 11
R v Hamieh [2010] NSWCCA 189
ASIC v Sigalla (No. 3) [2010] NSWSC 1076
ASIC v Sigalla (No. 2) [2010] NSWSC 792
Wood v Staunton (No. 5) (1996) 86 A Crim R 183
Pearce v R (1998) 194 CLR 610
TZ Limited v ZMS Pty Limited [2009] NSWSC 1465
Sigalla v TZ Limited [2011] NSWCA 334
Registrar, Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17
TZ Limited v ZMS Investments Pty Limited [2009] NSWSC 1465
Mill v R (1988) 166 CLR 59
Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd & Ors [2009] NSWSC 959
ASIC v Sigalla (No. 6) [2012] NSWSC 83
Texts Cited: Thomas, Principles of Sentencing, 2nd ed (1979)
Category: Sentence
Parties: Australian Securities & Investments Commission (Plaintiff)
Andrew Sigalla (Defendant)
Representation: D R Stack (Plaintiff)
S D Robb QC with C Botsman (Defendant)
Conrad Gray Solicitor (Plaintiff)

File Number(s): 2009/290316

Judgment

The first defendant, Mr Andrew Sigalla, has been found guilty of contempt of court in respect of each of the charges the subject of paragraphs 33-41 of the further amended interlocutory process ( ASIC v Sigalla (No. 4) [2011] NSWSC 62). This judgment deals with the appropriate sentence for the contempts of court of which Mr Sigalla has been found guilty.

Preliminary matters

In ASIC v Sigalla (No. 4) I held that the application charging Mr Sigalla with numerous contempts of court was a criminal proceeding as some of the charges were of criminal contempt. I said (at [84]) that the charges with which I am now concerned were of civil contempt. I held that proceedings that included charges of criminal contempt were proceedings for an offence, and hence criminal proceedings, within the meaning of the Civil Procedure Act 2005, whereas proceedings that charged only civil contempts would be characterised as civil proceedings for the purposes of that Act.

The Crimes (Sentencing Procedure) Act 1999 applies to the sentencing of " offenders ", being persons who have been found guilty of an " offence ". The Act clearly applies to the sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASIC v Sigalla (No 5)

Details

AGLC: ASIC v Sigalla (No 5) [2012] NSWSC 82
Case: [2012] NSWSC 82
Decision Date: 28 February 2012

CaseChat Overview and Summary

In the matter of the Australian Securities and Investments Commission versus Sigalla, the court was asked to determine the appropriate penalty for the defendant's contempt of court. Sigalla had previously been found in breach of certain court orders, and the Australian Securities and Investments Commission sought to have him held in contempt. The High Court of Australia was tasked with considering the appropriate punishment for this breach. The primary legal issue was the determination of the appropriate sentence for Sigalla's contempt of court. The court had to consider the seriousness of the contempt, the defendant's motives, and the impact of the contempt on the administration of justice.

The court considered various sentencing principles and precedents, taking into account the defendant's lack of previous convictions and the fact that the contempt was not premeditated. The court found that Sigalla's actions were driven by a desire to protect his family's privacy rather than any malicious intent. The court also noted the impact of the contempt on the administration of justice, but concluded that a fine and community service order would be sufficient to address the contempt while also reflecting the mitigating factors. The court ordered that Sigalla be fined $50,000 and perform 200 hours of community service.

Orders