Australian Securities and Investments Commission v Oswyn Indra de Silva

[2010] NSWSC 200

CITATION:	ASIC v Oswyn Indra de Silva [2010] NSWSC 200
HEARING DATE(S):	15, 16 and 17 March 2010
JUDGMENT DATE :	18 March 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Palmer J
DECISION:	Custodial sentence required. Sentencing deferred until report received as to medical facilities available in prison to treat Defendant’s precarious HIV positive condition.
CATCHWORDS:	CONTEMPT OF COURT – SENTENCING – Defendant pleaded guilty to breach of order restraining him from attempting to leave jurisdiction pending ASIC examination – Defendant detained at airport attempting to leave – guilty plea – whether mitigating factors – whether prison sentence required.
LEGISLATION CITED:	Australian Securities and Investments Commission Act 2001 (Cth) – s 13 Corporations Act 2001 (Cth) – s 601FD, s 601FE, s 1043A, s 1323 Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(3) Evidence Act 1995 (NSW) – s 128
CATEGORY:	Sentence
CASES CITED:	Gallagher v Durack (1983) 152 CLR 238 Keeley v Brooking (1979) 143 CLR 162 R v Gray [1900] 2 QB 36 R v Hart [1999] NSWCCA 204 Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (No 2) (1982) 65 FLR 432 Wood v Staunton (No 5) (1996) 86 A Crim R 183
PARTIES:	Australian Securities & Investments Commission (Plaintiff) Oswyn Indra de Silva (Defendant)
FILE NUMBER(S):	SC 2010/051481
COUNSEL:	D.R. Stack (Plaintiff) Y. Shariff (Defendant)
SOLICITORS:	Conrad Gray, ASIC (Plaintiff) Atanaskovic Hartnell (Defendant)

2010/051481 Australian Securities & Investments Commission v de Silva

JUDGMENT

18 March, 2010

Introduction

1 On 26 February 2010, the Australian Securities and Investments Commission (“ASIC”) obtained orders from the Court under s 1323 Corporations Act 2001 (Cth) restraining Mr Oswyn Indra de Silva, a Malaysian citizen on holiday in Australia, from leaving or attempting to leave Australia. ASIC had that day commenced an investigation under s 13 Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) into suspected contraventions by Mr de Silva, while an employee of Macquarie Bank, of provisions of the Corporations Act relating to share trading. The proceedings were made returnable before the Court on 2 March 2010.

2 Mr de Silva was served with the Court’s orders in the early evening of 26 February. On 1 March, the day before he was required to appear in Court, Mr de Silva went to Perth International Airport, checked in for a Malaysian Airlines flight departing Perth for Kuala Lumpur and entered the overseas departure area. There the Australian Federal Police, who had notice of the Court orders, detained him and he was brought back to Sydney. Mr de Silva appeared in Court on 2 March. ASIC filed a Statement of Charge for contempt of Court. Mr de Silva surrendered his passport and consented to the continuation of the orders restraining him from leaving Australia.

3 On 8 March, Mr de Silva appeared and entered a plea of guilty to the charge of contempt. The proceedings were adjourned to 15 March for hearing on sentence and the restraining orders were continued.

4 On 15 March, the proceedings came before me for hearing. I advised Counsel for Mr de Silva, Mr Shariff, that the material provided in support of Mr de Silva’s plea in mitigation contained significant gaps. The proceedings were adjourned to the following day to allow additional evidence to be filed.

5 A further affidavit has been provided by Mr de Silva. Affidavits have also been provided by his brother, Kevin, his mother and by Mr Dowdall, a solicitor, who gave him informal advice.

6 Mr de Silva was cross examined by Mr Stack of Counsel, who appears for ASIC. During the course of that cross examination Mr de Silva obtained legal advice and, as a result, he received an assurance from the Court that he would receive a certificate under s 128 Evidence Act 1995 (NSW). He then admitted that, while an employee of Macquarie Bank, he had engaged in the dishonest share trading activities which ASIC was then investigating.

7 Mr Stack submits that Mr de Silva’s breach of the Court orders was a calculated and deliberate attempt to escape the investigation by ASIC which would reveal his dishonest activities. Mr Stack says that the contempt is in the upper range of seriousness and that Mr de Silva should be sentenced to a term of imprisonment.

8 Mr Shariff submits that at the time of his attempted departure from Australia, Mr de Silva was suffering acute emotional distress so that his responsibility for his actions is diminished. Further, he says, all of the circumstances of the case, particularly those relating to the state of Mr de Silva’s health, warrant the imposition of a fine rather than a custodial sentence or, at least, a suspended custodial sentence conditional upon payment of a fine.

9 It is now necessary to examine the facts of the case in more detail.

Background

10 Mr de Silva was born in 1974. His family live in Kuala Lumpur. From 1993 to 1997 he studied commerce at McGill University in Montreal, Canada. He then worked in the finance industry in Malaysia, Singapore, the Netherlands, Australia and the United Kingdom.

11 In March 2005, Mr de Silva commenced employment with Macquarie Bank Limited in the funds management group, based in Sydney. In late 2005, he was diagnosed as HIV positive. He says that the diagnosis was a major reason for the break up of his then relationship.

12 Mr de Silva was appointed portfolio manager for the Asian component of funds managed by Macquarie Investment Management Limited, namely the Macquarie Global Property Securities Fund (Hedged) and the Macquarie Global Property Securities Fund (Unhedged) (“the Funds”). He made decisions about the Asian investments of the Funds. Mr de Silva says that he was under intense pressure to increase investment in the Funds. He says that this pressure, coupled with his anxiety about his HIV positive diagnosis, motivated his decision in late 2006 to take profits for himself at the expense of the Funds which he was managing. He set up trading accounts with a stockbroker in Singapore and, very shortly before the Funds bought large parcels of securities, he himself bought those securities on the Singapore stock exchange and then on-sold them to the Funds at a profit. There were twenty-nine such transactions between December 2006 and April 2007, 26 of them involving sales by him to the Funds, resulting in profits to Mr de Silva in the order of $3.6M. Mr de Silva’s activities are said by ASIC to be in breach of the “insider trading” provisions of s 601FD, s 601FE and s 1043A Corporations Act.

13 Mr de Silva says that in May 2008, while working in the London office of Macquarie Bank, he came to the decision that he could no longer bear the pressures of his work and the stress of hiding his HIV positive status from his employer. He told his employers of his illness in early May 2008 and that he wished to resign. He was given immediate leave on sick pay and a severance agreement was negotiated. The agreement was finalised in about July or August 2008 and was, on Mr de Silva’s own concession, very generous.

14 Mr de Silva says that when the final payments from his severance agreement were received in September 2008, he was overcome with remorse for his fraudulent trading activities. He says that he became a virtual recluse and that he deliberately lost the profits from his fraudulent trading in further trading on the stock market. He says that all that he has left of any substance is an apartment in Kuala Lumpur, purchased for about AUD800,000, and a Porsche 911 motor car in London, purchased in June 2008 for about AUD198,000.

Events up to Mr de Silva’s detention

15 Mr de Silva, who had been living in London and in the USA in 2009 and January 2010, arrived in Australia on 20 February 2010 for a visit of about ten days in order to see his former partner, Mr Kanawati, and to realise a small amount standing to his credit in a local superannuation fund. On his arrival, he went to stay with Mr Kanawati. He said that soon afterwards he became emotionally distressed and, feeling guilt because of his HIV positive status, he harmed himself sexually as a form of punishment.

16 I accept that, because of difficulties with his personal relationship, Mr de Silva was highly emotional at the time that he was served with the Court’s orders on 26 February. Nevertheless, he read and understood the Court’s orders and he read the warning that he would be liable to imprisonment if he breached the orders. Even so, he decided to return to Malaysia immediately. He went to Sydney airport at about 7pm that day and attempted to buy a ticket to Kuala Lumpur. He says that he wanted a return ticket to Sydney for 1 March, so that he could attend Court on 2 March, but he was told that he could not purchase a return ticket until the following day. He then left the airport.

17 On the evening of 26 February, Mr de Silva, Mr Kanawati and a friend of Mr Mr Kanawati, Mr Dowdall, a solicitor, met for dinner in a restaurant. Mr de Silva showed Mr Dowdall the Court documents served on him earlier in the evening. Mr Dowdall said that he had no experience in such matters but could refer him to solicitors experienced in the area. He told Mr de Silva that, in the meantime, the orders meant that he had to stay in the country to appear in Court on 2 March and that he would be in breach of the orders if he tried to leave.

18 I have no doubt that by this time, if not earlier in the day when he read the documents served on him, Mr de Silva fully understood the grave consequences of attempting to leave the country.

19 During the evening of 26 February and the morning of 27 February, Mr de Silva spoke by telephone to his brother, Kevin, in Kuala Lumpur. He told Kevin that he was in trouble and needed help in finding a lawyer. According to Kevin’s witness statement, Kevin decided to fly to Australia immediately to help find a lawyer. Kevin says, however, that prior to leaving for Australia he spoke to a friend who told him that “the best means of leaving Australia was to leave via Perth or Darwin”. I infer that “the best means of leaving Australia” means “the best means of leaving in breach of the orders without being stopped by the authorities”.

20 At 10.37am on 27 February, Mr Dowdall sent an e-mail to Mr Kanawati, which Mr Kanawati immediately sent on to Mr de Silva. In the e-mail Mr Dowdall recommended four solicitors who might assist, and he gave some information about them, their experience and their law firms. The recommendations included Mr Ashley Black of Mallesons Stephen Jaques and Mr John Atanaskovic of Atanaskovic Hartnell.

21 At about 1pm that day, Mr de Silva went to the house of a close friend, Mr Wouters. He says that he told Mr Wouters that he had to go home to Malaysia “as I have a medical emergency. I need to get back to my family. I can’t cope on my own”. Mr de Silva went with Mr Wouters to a local tourist office and booked and paid for a return ticket to Bangkok, arriving Bangkok on 28 February at 9.05am, departing Bangkok on 1 March at 7.30pm and arriving Sydney on 2 March at 8.45am. Mr de Silva says that he planned to fly from Bangkok to Kuala Lumpur and from Kuala Lumpur back to Bangkok in time to meet these connections. However, he did not book at the same time the connecting flights between Bangkok and Kuala Lumpur.

22 If I am to accept Mr de Silva’s evidence that he truly intended to return to Sydney on 2 March, it means that, bearing in mind travelling to and from airports, time between connections and time in transit lounges before flights, Mr de Silva would have spent virtually the whole time between his departure from Sydney on 27 February and his return on the morning of 2 March in airports and planes. Mr de Silva has not explained how, during this time, he could receive medical treatment in Malaysia which he could not have received more conveniently and more cheaply in Sydney.

23 Mr de Silva says that late in the afternoon of 27 February he spoke to his brother, Kevin, who said that he was coming to Sydney and that they would find a lawyer. Mr de Silva then decided to cancel the tickets to and from Bangkok.

24 In the morning of Sunday, 28 February, Kevin de Silva arrived in Sydney and went to Mr Wouters’ home. A lunch was arranged for that day at a restaurant, at which Mr Kevin de Silva, Mr Oswyn de Silva, Mr Wouters and Mr Dowdall attended. Mr Dowdall recommended Mr Ashley Black to represent Mr de Silva and Mr de Silva gave him copies of the Court documents to forward to Mr Black.

25 Mr Dowdall sent an e-mail to Mr Black at 2.30pm that day, with a copy to Mr de Silva, explaining the position and asking if Mr Black could represent Mr de Silva. Mr Black responded by e-mail at 4.08pm the same day, with a copy to Mr de Silva. He said that he could not accept the retainer because of another pressing case. Mr de Silva then e-mailed Mr Dowdall five minutes later, saying “Could you please forward your original e-mail to another lawyer since Mallesons can’t”. I infer that “another lawyer” meant one of the other lawyers recommended by Mr Dowdall in his e-mail to Mr de Silva of 27 February.

26 At 9.59 that night, Mr Dowdall sent an e-mail to Mr Hartnell in the same terms as that sent to Mr Black. Again, he sent a copy of the e-mail to Mr de Silva.

27 After the lunch meeting with Mr Dowdall on 28 February, according to Kevin, he suggested to his brother that they go to Canberra to seek help from the Malaysian High Commission. He said that if they could not get help they should leave Australia. He told his brother that it was easier to leave via Perth rather than Sydney and that he would make the bookings to leave from Perth in case they could not get help from the Malaysian High Commission or find a lawyer.

28 Kevin says that he then booked tickets on a flight from Perth to Kuala Lumpur on 1 March, tickets on a coach from Sydney to Canberra and tickets on a 6.30am flight from Canberra to Perth in order to connect with the Perth flight to Kuala Lumpur. He says that he made these bookings as a precaution in case they could not find a lawyer for Mr de Silva or get help from the Malaysian High Commission in Canberra.

29 The brothers travelled to Canberra by coach on the night of 28 February.

30 Early in the morning of 1 March, according to both Kevin and Oswyn de Silva, Oswyn panicked and decided that he did not want to see the Malaysian High Commission as he did not want to tell them that he was HIV positive. He decided that he wanted to leave Australia immediately. The brothers then caught the 6.30am flight from Canberra to Perth.

31 At 8.30 that morning Mr Hartnell sent an e-mail to Mr Dowdall with a copy to Mr de Silva, saying that he could accept instructions to appear for Mr de Silva. Mr de Silva obviously had means of receiving and sending e-mails. He does not say that he did not see that e-mail prior to checking in for his flight from Perth to Kuala Lumpur that day.

32 When Mr de Silva was detained by the Federal Police at Perth airport he was asked why he was leaving in breach of the Court’s orders. Mr de Silva said: “I need urgent medical attention”.

Mr de Silva’s state of mind

33 I accept that, because of his personal relationships and the history of his HIV status, Mr de Silva was in a state of high emotional stress before he was served with the Court’s orders and that his stress was considerably increased by the service of those orders. However, I do not accept that the level of his emotional stress was so high, or that the state of his health was so immediately threatening, that he was not able to understand the Court’s orders and to appreciate fully the consequences if he disobeyed them. I am satisfied that he made his decision on 1 March fully understanding the risks involved, and fully capable of making a rational decision about what he would do. My reasons for that conclusion are as follows.

34 First, I do not accept Mr de Silva’s claim that he felt alone in this country, vulnerable, without friends and without legal assistance. His brother joined him in Sydney on 28 February, he had the support of Mr Wouters and Mr Dowdall, a lawyer, not to mention his relationship with Mr Kanawati. He had other good friends in Sydney whom he saw at the time, one of whom has given him a character reference for this case. He had lived in Sydney for years and worked here in a senior position with one of the most sophisticated financial institutions in the world. He had been assured by Mr Dowdall that he would find a good solicitor experienced in the field and Mr Dowdall had been as good as his word, contacting urgently very able lawyers and e-mailing copies of the communications to Mr de Silva. I do not accept Mr de Silva was alone and vulnerable to a degree that, in reality, contributed to his decision to leave the country. He says now that he felt alone and vulnerable but I think that that perception is strongly influenced by the position in which he now finds himself.

35 Second, there is no evidence that Mr de Silva was suffering from a mental condition which impaired his ability to make a rational judgment on 1 March whether to disobey the Court’s orders. There is no evidence that he had been receiving psychiatric or psychological treatment for any significant time. He was taking antidepressant medication for about two months in 2005. Apparently, he thought that he no longer needed it.

36 Mr de Silva consulted a clinical psychologist in Sydney on 9 March, after he had pleaded guilty to the contempt charge and was due to appear for sentencing. Not surprisingly, the psychologist found that Mr de Silva was “severely distressed” and suffering from “extreme levels of depression, anxiety and externally triggered stressor responsiveness”. I am unable to determine from the report what weight should be given, in assessing Mr de Silva’s capacity to make rational and responsible decisions as at 1 March, to distress caused by the fact that he was caught and faces punishment in Australia and what weight should be given to the stress caused by service of the Court’s order on 26 February.

37 Third, I do not accept that Mr de Silva’s anxiety about his health was so acute that it overrode his ability as at 1 March to make a responsible decision whether to disobey the Court’s order. The injury to his penis, which he says was self-inflicted after he arrived in Sydney, was not so severe that it prevented him from moving about, socialising, and making long trips by coach and plane.

38 Mr de Silva consulted a doctor about the injury on 27 February. The doctor’s notes record “several cuts and swelling” and make other detailed physical observations, none of which suggest that the condition, while painful, was dangerous and could not be successfully treated by the course of antibiotics and analgesics which was prescribed.

39 The doctor’s notes continue: “Very upset and distressed – says he is finding everything ‘tough’ – ‘living is hard’ but denies suicidal thoughts – his brother is flying in tonight and he is staying with his best friend”. I assume that “best friend” is Mr de Silva’s own description, showing that he did not then feel himself to be without emotional support in Sydney.

40 Mr de Silva was, clearly enough, not seriously alarmed by HIV related issues when he decided to leave the country on 1 March. He was not then taking any medication for his HIV condition. It was only after his detention and return to Sydney that he consulted a sexual health specialist on 3 March. An examination revealed, for the first time, that his CD4 count had fall from 360 in 2007 (not considered immediately threatening) to 220, which renders him highly vulnerable to infections such as pneumonia. I have no doubt that discovery of this alarming fall in his immunity levels has caused Mr de Silva a great deal of stress and anxiety since 3 March, and that it is a very significant factor in his current very high level of depression. However, it is not a factor in assessing the culpability of his actions in breaching the Court’s orders on 1 March.

41 Fourth, from my observation of Mr de Silva in the witness box I find him to be a highly intelligent, highly articulate man. Even under the stress of cross examination, he was able to answer intelligently, calmly and entirely coherently – up to the point at which he was giving evidence as to how he came to reveal to his employer his HIV status and what he felt when his employer gave him a very generous retirement agreement. At that point, Mr de Silva became extremely distressed and emotional and remained so for a considerable time.

42 I have no doubt that Mr de Silva’s distress in the witness box was genuine. Nor do I have any doubt that the episode is characteristic of Mr de Silva’s volatile emotional state now, and for some years previously – at least from the time he was diagnosed as HIV positive. However, Mr de Silva’s emotional distress was episodic – it is, and was not as at 1 March, a permanent condition, as his overall conduct in the witness box demonstrated.

43 I conclude that, as at 1 March, Mr de Silva’s emotional volatility did not diminish his capacity to tell right from wrong, nor did it diminish his capacity to appreciate in advance the probable consequences of the decisions he might make.

Motive in attempting to flee and Mr de Silva’s credit

44 I am satisfied that Mr de Silva’s over-riding motive in attempting to flee the jurisdiction was a desire to avoid the investigation by ASIC and its possible penal consequences.

45 I do not accept Mr de Silva’s evidence that he attempted to flee because he was afraid that he may be unable to obtain legal assistance. Mr Dowdall was actively pursuing legal representation; there was no rational reason to believe that Mr Dowdall would be unsuccessful. Mr de Silva’s ability to pay for legal representation was not an issue.

46 By 8.23am on 1 March, Mr Hartnell had e-mailed Mr de Silva saying that he would accept instructions. Mr de Silva would have been able to see that e-mail, at the latest when he arrived in Perth, long before he checked in to the flight to Kuala Lumpur and attempted to leave the country. Mr de Silva does not say that he did not check his e-mails. I infer that he did so and saw Mr Hartnell’s e-mail, but it did not make any difference to the decision which he had already made.

47 I do not accept the evidence of Mr de Silva and of his brother that they went to Canberra on the evening of 28 February to seek help from the Malaysian High Commission and that leaving the country was a last resort if they could not get help from a lawyer or from the Commission. I conclude that that evidence is deliberately false and has been given by Mr de Silva and his brother in concert in order to present to the Court a picture of last minute panic and flight by Mr de Silva, when the truth is that the brothers carried out a premeditated plan of escape.

48 My reasons for this conclusion are as follows.

49 First, Mr de Silva does not explain what help he thought the Malaysian High Commission in Canberra could give. His problem was not diplomatic; it was purely a matter of the internal regulatory law of Australia and both he and his brother, an experienced international businessman, would have known that the High Commission would not, and could not, interfere with a Court order preventing Mr de Silva from leaving the country. It is notable that Mr Dowdall does not say in his evidence that any reference was made to Mr de Silva seeking assistance from the Malaysian High Commission.

50 Second, there could be no rational basis to suppose that the Malaysian High Commission in Canberra might be able to find a lawyer in Sydney for Mr de Silva if Mr Dowdall, a Sydney solicitor, could not. By the evening of 28 February, when the brothers went by coach to Canberra, Mr Dowdall had already contacted two highly experienced lawyers, as Mr de Silva knew. He does not explain what the High Commission could do that Mr Dowdall was not already doing.

51 Third, Mr de Silva has not explained why he thought that the Malaysian High Commission in Canberra could give assistance which the Malaysian Consulate in Sydney could not give on 1 March.

52 Fourth, Mr de Silva says that on the afternoon of 28 February he and his brother agreed that they would go to Canberra to the Malaysian High Commission and “if they cannot help us we will make arrangements to leave the country”. However, at 5.40pm that afternoon they booked a flight from Canberra to Perth on 1 March, leaving at 6.30am, long before the Malaysian High Commission in Canberra would have opened its offices. Mr de Silva seeks to explain this by saying that when he received Mr Black’s e-mail at 4.08pm on 28 February saying that Mallesons could not act, he panicked and said that he wanted to leave without seeing the Malaysian High Commission in Canberra but his brother calmed him down, saying that he would book a flight from Canberra to Perth “as a back up” and that Mr de Silva could decide what to do after a night’s sleep in Canberra.

53 However, before the 6.30am Canberra flight to Perth was booked, Mr de Silva sent an e-mail to Mr Dowdall at 4.13pm saying “Peter, could u pls forward ur original e-mail to another lawyer since Malleson can’t. Tks.” This e-mail does not bear any hallmarks of panic or “paranoia”, to use Mr de Silva’s description in paragraph 58 of his first affidavit. It is quite calm and rational.

54 Fifth, Mr de Silva does not explain why he and his brother travelled to Canberra on 28 February by coach instead of by plane. Bearing in mind Kevin de Silva’s advice that the “best means” of leaving Australia was not via Sydney airport, the inference is well open that the brothers did not want to go anywhere near Sydney airport prior to actually leaving Australia for fear of attracting the attention of the authorities. A safer means of escape would be to go by coach to Canberra and then fly from Canberra to Perth before boarding an international flight to Kuala Lumpur.

55 Sixth, and very importantly, Mr de Silva does not explain why the possibility of not having a lawyer to represent him in Court on 2 March was so terrifying. There was no suggestion in the documents served on him that he would be put on trial for any offence on 2 March. The documents made it plain that all that ASIC wished to do was to prevent him from leaving the country before it could examine him about his share trading activities. I conclude that it was the possibility that he might have to answer ASIC’s questions about his trading activities which was terrifying to Mr de Silva, not the possibility – quite remote in reality – that he might have to appear in Court on 2 March without a lawyer.

56 Having regard to these gaps and implausibilities in Mr de Silva’s evidence as well as to his general demeanour in the witness box, I find that Mr de Silva has deliberately not told the truth to the Court in explaining how he came to disobey the Court’s orders.

57 I conclude that from the moment Mr de Silva was served with the Court’s orders on 26 February he made up his mind to leave the country, if he could do so without being caught. He went to the airport to leave immediately. There was some problem which made it impossible. I do not accept Mr de Silva’s evidence that the problem was that he could not then book a return flight to Australia.

58 On 27 February, with Mr Wouter’s assistance, he booked a flight to Bangkok. The return part of the booking was never intended to be used. Later that afternoon, as Mr de Silva says, he spoke by telephone to his brother and then cancelled the ticket to Bangkok. It is highly probable that he cancelled the ticket because his brother told him that if he tried to leave Australia via Sydney airport there was a high risk that he would be caught – he should stay in Sydney until Kevin arrived and they would work out a better escape plan.

59 I conclude that Mr de Silva was never serious about remaining in Australia if he could get a lawyer represent him on 2 March. He knew that Mr Dowdall was contacting other lawyers and that he probably would have a response by 1 March, as in fact he did. But the availability of Mr Hartnell to accept instructions and appear made no difference to Mr de Silva’s decision.

60 I conclude that Mr de Silva’s decision to flee the jurisdiction in breach of the Court’s orders was deliberate, rational and carefully planned in concert with his brother. It was a wilful and contumacious contempt of Court, compounded by Mr de Silva’s decision not to tell the truth in Court when pleading mitigation of his conduct. It is a contempt of the most serious kind.

Sentencing considerations

61 Section 21A(3) Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the mitigating factors which must be considered, as follows:

“(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record)
of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23).”

62 In Wood v Staunton (No 5) (1996) 86 A Crim R 183, at 185, Dunford J set out a number of other factors which are relevant in determining the proper punishment for contempt of Court:

“1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt.”

63 Additionally, it should be emphasised that:

– the Court should impose a term of imprisonment only in the most serious cases of contempt: Keeley v Brooking (1979) 143 CLR 162, at 179; Gallagher v Durack (1983) 152 CLR 238;

– genuine contrition and a full apology by the contemnor may reduce the penalty: R v Gray [1900] 2 QB 36, at 41-42; Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (No 2) (1982) 65 FLR 432, at 436.

64 As I have said, I regard Mr de Silva’s contempt of the Court’s order as deliberate and premeditated and committed with a full understanding of the consequences. It is a most serious contempt.

65 I have concluded that Mr de Silva’s motive in committing the contempt was to avoid the investigation into his share trading activities which ASIC was proposing to conduct, and to avoid the possible consequences of that investigation.

66 I do not accept Mr de Silva’s evidence that his decision to flee was taken at the last moment and in a blind panic. I find that his evidence to that effect is deliberately false and is designed to present to the Court a mitigating factor which did not exist.

67 I do not accept Mr de Silva’s evidence that he ever intended to return to Sydney to subject himself to the ASIC examination. I find that the return airline tickets which he bought were intended to be used one-way only.

68 I find that Mr de Silva has not given a full and candid account of his conduct to the Court. He has not accepted responsibility for his real actions and he makes his apologies and admissions to the Court for conduct which is only part of the truth. I cannot, therefore, accept his contrition as sincere. I find that the emotional distress which he had displayed in Court results largely from the fact that he has been caught and faces a penalty.

69 I have expressly taken into account but give relatively little weight to Mr de Silva’s plea of guilty. In truth, there was no defence to the charge, as must have manifestly been evident. The plea of guilty had little, if any, utilitarian value.

70 I regard as of relatively little weight Mr de Silva’s co-operation with ASIC in attending his examinations. He did not intend to co-operate when he was served with the Court’s order and he has co-operated only when he was caught and had no other choice.

71 I take into account the evidence of Mr de Silva’s previous good character. That evidence shows him to be a generous and kindly person of good family background. The evidence in totality suggests that what has happened to Mr de Silva since his HIV positive diagnosis in late 2005 is an uncharacteristically dark and very troubled period of his life from which, it is to be hoped, with medical treatment and with the love and support of his family and many friends, he will emerge successfully.

72 I take into account that Mr de Silva is unlikely to re-offend in this way and that the personal detrimental effect of a punishment weighs lightly.

73 I take into account – and it is, indeed, the most serious, weighty and troubling aspect of the sentencing considerations – Mr de Silva’s HIV positive status and the seriously declining levels of his resistance to disease. I have considered carefully the evidence of Dr Bloch and the report of the clinical psychologist. I have no doubt that imprisonment will cause great emotional distress to Mr de Silva. I must consider whether imposition of a prison sentence is likely to punish Mr de Silva, in terms of his physical and mental health, disproportionately to the seriousness of his contempt. However, that consideration is limited by the necessity of maintaining proper standards of punishment: R v Hart [1999] NSWCCA 204, at [8].

74 I bear in mind that Mr de Silva’s HIV positive condition is treatable with anti-retroviral medication. His doctor recommended immediate treatment with that medication on 3 March. There is no evidence as to whether Mr de Silva has followed that advice. Being a non-resident, he does not have the benefit of Medicare but his financial resources are such that he should have had no difficulty in immediately commencing the medication.

75 The Department of Correctional Services has facilities for the treatment of persons with HIV positive status. If Mr de Silva is sentenced to imprisonment, his condition will be known to the prison authorities and he should receive anti-retroviral medication in accordance with his needs, either at the State’s expense or at his own expense. However, the evidence in this regard is not as full as it should be. I am left in doubt as to whether there will be substantial difficulties in providing proper medical treatment for Mr de Silva in prison.

76 Having taken all of these factors into consideration, as well as all of the other mitigating factors of the case to which I have referred, I come to the importance of upholding the purpose of the contempt jurisdiction and, in particular, the importance of demonstrating not only to the contemnor but to the community at large that it is essential for the good order and stability of the community that the orders of the Court be obeyed absolutely according to their terms – not only if a person chooses to obey, not only if a person does not find it too emotionally distressing to obey, not only if a person thinks that the Court is wrong and the order should not be obeyed – but obeyed in accordance with its terms unless and until the Court can be persuaded to make some different order.

77 It is essential that the Court state emphatically that its orders must be obeyed by rich and poor alike, and that a person with money cannot commit a deliberate and serious contempt of Court and expect to buy off a prison sentence with payment of a fine.

78 Bearing in mind the seriousness of Mr de Silva’s contempt and all of the other factors to which I have referred, I conclude that a custodial sentence is required.

79 However, as I have noted, I do not have sufficient evidence as to what medical treatment and facilities are available for Mr de Silva while in custody and whether there would be any substantial difficulty in providing those facilities to him. I will require a report as to these matters from the Department of Correctional Services before I pass sentence.

80 I will stand these proceedings over for a short time, during which I direct the Department of Correctional Services to provide a report to the Court and to the parties as to the particular medical facilities to Mr de Silva.

– oOo –