Chad Harris v Marubeni Equipment Finance (Oceania) Pty Ltd
[2018] VSCA 211
•23 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0163
| CHAD HARRIS | Applicant |
| v | |
| MARUBENI EQUIPMENT FINANCE (OCEANIA) PTY LTD | Respondent |
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| JUDGES: | WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 August 2018 |
| DATE OF JUDGMENT: | 23 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 211 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1048 (Judge Cosgrave) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Contempt – Failure to comply with court order – Defiant, contumacious, continuing contempt – Sentenced to term of imprisonment of 3 months – Errors asserted by applicant not reasonably arguable – Manifest excess – Not reasonably arguable that sentence manifestly excessive – No reasonable prospect of less severe sentence being imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sala | Furstenberg Law |
| For the Respondent | Ms C Jones | DSS Law |
WHELAN JA
BEACH JA:
On 16 March 2018, a judge of the County Court determined that the applicant had committed a contempt of the County Court by failing to comply with an order made on 6 July 2017 (‘the 2017 order’).[1] The 2017 order required the applicant to deliver up an excavator and attachments (‘the excavator’) to the respondent by 4:00 pm on 13 July 2017. Notwithstanding knowledge of the 2017 order, the applicant did not deliver up (and has never delivered up) the excavator as required by the order.
[1]Marubeni Equipment Finance (Oceania) Pty Ltd v Harris [2018] VCC 267 (‘Liability Reasons’).
On 12 July 2018, the applicant was adjudged guilty of contempt of court and convicted and sentenced to a period of three months’ imprisonment expiring on 12 October 2018.[2]
[2]Marubeni Equipment Finance (Oceania) Pty Ltd v Harris [No 2] [2018] VCC 1048 (‘Sentencing Reasons’).
Pursuant to s 278 of the Criminal Procedure Act 2009, the applicant now seeks leave to appeal against his sentence.[3] In his application for leave to appeal, the applicant names the plaintiff in the proceeding at first instance as the respondent.[4] The applicant’s proposed grounds of appeal are as follows:
1.No effective plea in mitigation was made on behalf of the applicant resulting in a miscarriage of justice.
2.The sentencing judge fell into error by failing to properly apply the principle of parsimony.
3.The sentencing judge erred by giving undue weight to punishment and insufficient weight to an opportunity to purge the contempt.
4.In all the circumstances the sentence is manifestly excessive.
[3]Section 278 of the Criminal Procedure Act 2009 permits a person ‘sentenced for an offence by an originating court’ to appeal to the Court of Appeal against the sentence if the Court of Appeal gives that person leave to appeal. ‘Originating court’ is relevantly defined in s 3 of the Act to mean ‘the County Court in its original jurisdiction’. ‘Original jurisdiction’ is relevantly defined to include ‘a proceeding for contempt of court’.
[4]While this Court’s decision in Allen v The Queen (2013) 36 VR 565, 568 [13] (‘Allen’) holds that the Queen is the proper respondent to an appeal against the summary adjudication of a contempt of court charge, no party took any issue before us about this matter. It was uncontroversial that this Court has jurisdiction to hear the application for leave to appeal (and appeal if leave is granted): see Allen (2013) 36 VR 565, 569 [15]. See also Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527 (‘CFMEU v Grocon’).
Background circumstances
In 2013, the respondent was engaged in the business of providing finance for Hitachi, John Deere and Bell branded machinery. The applicant was the sole director of Crown Earthmoving Pty Ltd (‘Crown’). Crown provided earthmoving and excavation services until it was deregistered on 20 July 2015.
On 24 April 2013, the respondent (as mortgagee), together with Crown (as mortgagor) and the applicant (as guarantor of Crown’s obligations) executed a Deed of Mortgage granting a mortgage over the excavator. The amount financed was $167,257.40. Crown took delivery of the excavator on 26 April 2013.
Pursuant to the terms of the mortgage, Crown was required to repay the principal by way of monthly instalments. On 28 July 2015, Crown defaulted on its obligations. It has remained in default since that time. Following the service of a notice of default on 17 February 2017, which was not rectified, the respondent issued a writ on 12 May 2017. Marubeni sued the applicant, in his capacity as guarantor for damages and sought an order for delivery up of the excavator.
On 12 May 2017, the respondent filed a summons seeking an order pursuant to r 31.07 of the County Court Civil Procedure Rules 2008 (‘the County Court Rules’) that the applicant deliver up the excavator. On 6 July 2017, the respondent obtained judgment in default of appearance. The judgment included the 2017 order, and a penal notice warning the applicant of the consequences of disobedience of its terms.
On 6 November 2017, the respondent filed a summons seeking to have the applicant dealt with for contempt of court for failing to comply with the 2017 order.
On 23 January 2018, an order was made requiring the applicant to attend a hearing on 28 February 2018 (‘for the purpose of answering the judgment of [the County Court] dated 6 July 2017’).
The applicant did not appear on 28 February 2018. At the hearing on that day, the respondent established that the applicant had been served with the 2017 order and the orders made on 23 January 2018.[5] The evidence that the judge accepted as to service upon the applicant came from a process server, Mr Nogas. Mr Nogas’s evidence was that he personally served the applicant with the relevant papers on 29 January 2018. In his affidavit of service, Mr Nogas deposed:
[5]Liability Reasons [24].
I spoke with [the applicant] who said to me ‘Who are you? and why are you following me?’ In response, I said the following words to [the applicant]:
‘This order requires the attendance of Mr Chad Harris at the County Court of Victoria at 10:00 am on 28 February 2018, failing which he may be arrested.’
[The applicant] threw the orders [out of his car window] and said … ‘I haven’t been served’ … .
[The applicant] stopped at Harvester and Ballarat Road at the intersection next to the lane where I was driving and said to me ‘How would you like it if I followed you home and harassed you’ and I replied ‘Chad, you have been served’.
More detail was provided in Mr Nogas’s exhibited surveillance report. At the time of service, Mr Nogas and the applicant were sitting in their cars. After saying what the order required, Mr Nogas threw the orders onto the applicant’s lap. The applicant then threw the orders out of his car window, yelled at Mr Nogas, ‘I have not been served’, and then drove away.[6]
[6]Ibid [17].
As we have already observed, on 16 March 2018, in the absence of the applicant, a judge of the County Court delivered judgment, holding that the applicant had committed a contempt of the County Court by failing to comply with the 2017 order. On 14 May 2018, the matter came before another judge of the County Court on the issue of penalty. The applicant appeared in person at that hearing. On the applicant’s application, the matter was adjourned until 30 May 2018. The authenticated order in relation to the 14 May 2018 hearing discloses the following:
(a)[The judge] addressed [the applicant] directly, emphasising the seriousness of the matter and, in particular, explaining that the application before him today was to convict [the applicant] for contempt and sentence [the applicant] for a term of imprisonment, for his disregard of earlier orders served on him.
(b)[The judge] further explained that there were a number of steps [the applicant] could take in response to the application, including by apologising for his previous failures to comply with the Court’s orders and dealing with the claim in the proceeding for the return of [the respondent’s] equipment. However, it would be advisable for [the applicant] to take legal advice before deciding what to do.
(c)[The judge] stood the matter down to allow [the applicant] to discuss his options with counsel for [the respondent] and otherwise consider his position. When the matter returned counsel for [the respondent] explained that it seemed there may be obstacles to the return of the equipment and [the applicant] had indicated that he would like to obtain legal advice.
(d)[The judge] indicated that he was prepared to adjourn the matter for about two weeks to allow this to occur, and explained to [the applicant] that it was very important that he or his lawyers attend at the adjourned hearing, because if there was no appearance, his Honour may be left with no choice but to issue a warrant for [the applicant’s] arrest.
On 30 May 2018, the applicant was represented by counsel. Counsel advised the Court that the applicant had engaged his instructing solicitor the previous day and that counsel had been briefed earlier that morning. Counsel applied for an adjournment for a period of three to four weeks. The respondent opposed the adjournment and sought to have the matter heard on that day. The authenticated order of 30 May 2018 discloses that the matter was adjourned until 7 June 2018. In other matters, it was recorded that the judge ‘indicated that the Court would not accede to any further adjournments … unless any such application was supported by affidavit material providing a detailed explanation of why [the applicant] had delayed to date in properly responding to the application and why any further adjournment was required’.
The matter returned to court again on 7 June 2018. The applicant was represented by the same counsel who appeared on 30 May 2018. The transcript of 7 June discloses that counsel for the applicant commenced to make plea submissions on behalf of the applicant. In the course of these submissions, counsel for the applicant applied for leave for the applicant to file an affidavit. There was then, what appears from the transcript to be, an application for a ‘further indulgence from the court given that [the applicant] is now legally represented’. In substance, counsel for the applicant appeared to be asking for leave to file an affidavit on behalf of the applicant by 12 June 2018.
In the course of his submissions, counsel for the applicant sought to tender four documents (described below).
After hearing submissions from the respondent, the judge delivered an ex tempore ruling, permitting the applicant to file further limited submissions. In his ruling, the judge said:
I [am] prepared to grant [the applicant] a further indulgence by allowing him to file submissions about the medical and other issues which from an evidentiary perspective are in an inadmissible form and are possibly irrelevant. However, given the nature of the proceeding and the possible consequences it seems a reasonable compromise to allow [the applicant] some latitude in addressing the four documents which were handed up this afternoon.
However, that is the extent of the indulgence I’m prepared to grant. To the extent that the oral application is made to allow [the applicant] to file further affidavit material, that application is refused.
The four documents to which his Honour referred were:
·a report from Thomas Kossman dated 10 November 2017;
·a report from Health Information Services dated 18 November 2016;
·a report from Zac Stojcevski dated 24 May 2018; and
·an email from Senior Constable Onbashi dated 7 November 2017.
On 10 June 2018, the applicant filed brief written submissions dealing with these four documents.
Reasons for sentence
The sentencing judge commenced his reasons for sentence with a description of the circumstances giving rise to the applicant’s contempt, the Court’s reasons for determining that a contempt had been committed and the progress of the matter in the County Court following that finding.[7] The sentencing judge then observed that the position of the applicant at the hearing was notable in the following respects:
[7]Sentencing Reasons [2]–[14].
(1) The applicant filed no affidavit material in response to the respondent’s application.[8]
[8]Ibid [17].
(2) As a result of the applicant filing no affidavit material, there was no evidence before the sentencing court to explain:
·why the applicant did not comply with the 2017 order;
·whether the applicant acknowledged or admitted any wrongdoing;
·why the applicant had failed to pay costs orders made against him;
·the applicant’s financial position;
·whether the applicant was contrite or showed remorse for breaching the 2017 order; or
·any mitigating factors or other issues relevant to the question of penalty.[9]
[9]Ibid [18].
(3) The applicant made no (or no cogent) submissions about penalty.[10]
(4)Neither the applicant nor his counsel ‘made any comment or complaint about the process adopted to conduct the hearings regarding the issue of contempt and an appropriate penalty’.[11]
(5)On the plea hearing, counsel for the applicant produced the four documents to which we have already referred, without explaining how these documents were relevant or what reliance the Court should place upon them.[12]
[10]Ibid [19].
[11]Ibid [20].
[12]Ibid [22]–[25].
The sentencing judge described the applicant’s submissions about the four documents he tendered as ‘vague and unhelpful’.[13] In relation to the applicant’s submissions more generally, the sentencing judge said:
Overall, the submissions for [the applicant] did virtually nothing to assist his case. They did not seek to explain or justify [the applicant’s] behaviour regarding his failure to obey the court order, his failure to acknowledge his wrongdoing, or his failure to apologise or make amends for his contempt.[14]
[13]Ibid [26].
[14]Ibid [27].
Next, the judge set out some of the submissions made by the respondent and some general principles in relation to contempt proceedings.[15] In his consideration of the matter, the judge discussed the applicant’s personal circumstances,[16] before discussing other relevant matters under the headings ‘Nature and circumstances of the contempt’,[17] ‘Consequences of the contempt’,[18] ‘The culpability of [the applicant],[19] ‘The need for deterrence’,[20] ‘Reasons for [the applicant’s] contempt’,[21] ‘Prior contempt convictions’[22] (the judge noted that there was no evidence that the applicant had any prior convictions for contempt), ‘[The applicant’s] financial means’[23] and ‘General contrition and apology’.[24]
[15]Ibid [28]–[39].
[16]Ibid [40]–[50].
[17]Ibid [49]–[50].
[18]Ibid [51].
[19]Ibid [53].
[20]Ibid [54]–[57].
[21]Ibid [58].
[22]Ibid [59].
[23]Ibid [60].
[24]Ibid [61].
The judge then referred to the Sentencing Act 1991, together with a number of authorities including R v Herald & Weekly Times Pty Ltd,[25] R v Hinch,[26] R v Slaveski,[27] Paccar Financial Pty Ltd v Menzies [No 2],[28] CC Containers Pty Ltd v Lee,[29] Equity-One Mortgage Fund Ltd v Pepe[30] and ACCC v Halkalia Pty Ltd [No 3].[31]
[25][2008] VSC 251.
[26][2013] VSC 520.
[27][2012] VSC 7.
[28][2015] NSWSC 1622.
[29][2015] VSC 757.
[30][2015] VSC 274.
[31][2017 FCA 522.
Having discussed relevant authorities, the judge concluded that the applicant should be convicted of contempt and sentenced to three months’ imprisonment. The judge said:
I have reached this decision on the basis that:
• the defendant has been found guilty of contempt in respect of the court order made in July 2017;
• the contempt was found to be defiant and contumacious and is continuing;
• the defendant has not accepted responsibility for the contempt;
• there has been no explanation of the defendant’s conduct;
• the defendant has not apologised or shown any remorse for his contempt;
• the motorbike accident does not excuse the contempt;
• there is no proper basis to find the defendant suffered from any mental disorder or condition relevant to the contempt;
• there is no other penalty which sufficiently reflects the seriousness of the contempt;
• there is no evidence of mitigating factors affecting the commission of the contempt.
In reaching this view I have taken into account Harris’s personal circumstances (assuming they remain as advised to the report writers), especially his health. Had his circumstances been less troubled, I would have imposed a longer sentence.[32]
[32]Sentencing Reasons [75].
Applicant’s submissions
Under cover of proposed ground 1, the applicant submitted that no effective plea in mitigation had been made on his behalf. The applicant noted the sentencing judge’s observations that his counsel’s submissions were ‘vague and unhelpful’ and that they did ‘virtually nothing to assist his case’. The sentencing reasons were submitted to disclose that the sentencing judge was not provided with any relevant guidance or information. From this it was submitted that ‘the plea on behalf of the applicant went awry’. The applicant contended that a miscarriage of justice had occurred by virtue of him not being properly represented at first instance.
Under proposed ground 2, the applicant contended that the judge fell into error ‘by failing to properly apply the principle of parsimony’. The applicant submitted that the judge erred when he said that because the applicant ‘apparently has no money, it is pointless at one level fining him for contempt’ and that fining the applicant ‘would be insufficient to vindicate the authority of the court’.[33] It was submitted that it ‘simply cannot be the case’ that fining an impecunious person would be ‘inappropriate as it would have no effect upon him’.
[33]Sentencing Reasons [60].
Under proposed ground 3, the applicant submitted that the judge fell into error by giving undue weight to punishment and insufficient weight to the prospect of the applicant purging his contempt.
In the hearing before us counsel for the applicant sought an adjournment in order to file an affidavit by the applicant explaining why the excavator had not been given up. The explanation proposed to be given, as explained by counsel, was as follows. Sometime between February 2017 and the institution of the proceedings in May 2017 a recovery team from the respondent had attended upon premises where the applicant was storing the excavator with a crane to repossess it. The excavator is a tracked vehicle and cannot be driven on the road. The excavator was in a vacant lot with a locked fence around it. The lot was next to the applicant’s residence. In circumstances which are disputed, the recovery team left without the excavator. When they returned the next day, it had gone. The applicant reported what he contended to have been the theft of the excavator to police, several months later in November 2017. The applicant maintains he does not know where the excavator went, or where it is now. The applicant will say that he told his legal advisors about these matters before the plea hearing and that he was advised that such an explanation on oath would not be helpful.
Counsel for the applicant conceded that the proposed evidence was not fresh. It had been available at the sentencing hearing.
The application for an adjournment was refused because the proposed evidence was not fresh, and because, in our opinion, the evidence foreshadowed was incapable of compellingly demonstrating that there had been a miscarriage of justice arising from the fact that that material had not been put before the sentencing judge.[34] The forensic decision made by the applicant’s legal advisors not to put the foreshadowed explanation to the sentencing judge was readily understandable. Accordingly, the adjournment was refused because the evidence foreshadowed would not be admissible.
[34]Rehal v The Queen [2015] VSCA 81 [26].
Under proposed ground 4, the applicant submitted that the sentence was manifestly excessive. Reference was made to the sentence imposed in Slaveski and the sentence that was the subject of an application for leave to appeal in Zhang v Fortune Holding Group Pty Ltd.[35]
[35][2018] VSCA 70.
Analysis
There is no substance in any of the applicant’s proposed grounds of appeal. The history of the proceeding in the County Court shows that the applicant never attempted to engage with the process and the consequences of his failure to comply with the 2017 order.
The contempt committed by the applicant was a serious one, involving a sustained failure (if not refusal) to deliver up valuable equipment in accordance with the 2017 order. In the absence of a plea of guilty and remorse the applicant could not realistically have expected any disposition other than a term of imprisonment of the order of that imposed by the sentencing judge. This is particularly so having regard to the finding that the applicant’s contempt was defiant, contumacious and continuing. There is no substance to the suggestion by the applicant that the judge failed to properly apply the principle of parsimony.
The applicant’s contention that the judge erred by giving undue weight to punishment and insufficient weight to the opportunity to purge his contempt is equally devoid of merit. The issue of the possibility of apologising was raised with the applicant on 14 May 2018. He never availed himself of that opportunity. In the circumstances, the sentencing judge can hardly be criticised for the way he analysed the various relevant sentencing considerations.
Similarly, the applicant’s complaint of manifest excess is not reasonably arguable. As has been said many times before, manifest excess is a stringent ground which is difficult to make out. In order to make out this ground, the applicant must establish that the sentence imposed was wholly outside the permissible range of sentencing options available to the sentencing judge. Far from being wholly outside the permissible range, in our view, the sentence was (if anything) lenient having regard to the matters considered to be relevant by the sentencing judge.[36]
[36]Sentencing Reasons [75].
As none of the applicant’s proposed grounds of appeal are reasonably arguable, his application for leave to appeal must be refused. Moreover, in our view there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than that imposed by the sentencing judge. This provides an additional basis upon which leave to appeal should be refused.[37]
[37]See s 280(1)(a) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal will be refused.
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