Commissioner for Fair Trading v Garay

[2005] NSWSC 647

CITATION:	Commissioner for Fair Trading v Garay & Ors [2005] NSWSC 647
HEARING DATE(S):	28/06/2005, 30/06/2005
JUDGMENT DATE :	30 June 2005
JUDGMENT OF:	Buddin J
DECISION:	1 In respect of each of the four charges of contempt which constitute the first set of proceedings the offender is sentenced to imprisonment for a period of four months. Each of those sentences is to be served concurrently. Although I consider that nothing other than a sentence of imprisonment is required I do not consider that a sentence of more than six months is called for particularly given the offender's favourable subjective matters. 2 In respect of each of the four charges of contempt which constitute the second set of proceedings the offender is sentenced to a non-parole period of 8 months to commence immediately at the expiration of the sentences imposed in respect of the first set of proceedings. The balance of each of those terms is 4 months. Each of those sentences are to be served concurrently with each other. The total effective non-parole period is thus one of 12 months with the total effective overall sentence being one of 16 months. 3 I direct that each of the above sentences is to be served by way of periodic detention. I note that the offender has been assessed as suitable for periodic detention and that he has signed the requisite undertaking pursuant to s 66(1)(f) of the Crimes (Sentencing Procedure) Act 1999. 4 The first set of sentences is to commence on 8 July 2005. The second set of sentences is to commence immediately upon the expiration of the first set of sentences. I direct that the defendant report to Tomago Periodic Detention Centre at 8.30 am on 9 July 2005. I direct that the offender is to be released on parole at the expiration of the non-parole period imposed in respect of the second set of offences. 5 I order that the offender pay the plaintiff's costs.

CATCHWORDS:	Sentencing for contempt of court - various breaches of orders of Supreme Court restraining offender from certain conduct - wilful and repeated breaches over an extended period of time - favourable subjective features.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Home Building Act 1989 Fair Trading Act 1987 Supreme Court Rules
CASES CITED:	AG for NSW v Whiley (1993) 31 NSWLR 314 Cameron v The Queen (2002) 187 ALR 65 Commissioner for Fair Trading v Elasaad [2005] NSWSC 414 Commissioner for Fair Trading v Oliver [2004] NSWSC 732 Director-General of the Department of Fair Trading v Yang (2002) 132 A Crim R 438 Pearce v The Queen (1998) 194 CLR 610 Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435 Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 R v Thomson and Houlton (2000) 49 NSWLR 383 Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183
PARTIES:	Commissioner for Fair Trading (Plaintiff) Peter Todd Garay (First Defendant)
FILE NUMBER(S):	SC 12909/2003
COUNSEL:	P Griffin (Plaintiff) P Boulten SC (Defendant)
SOLICITORS:	David Catt (Plaintiff) Brett Wiggins & Associates (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 30 JUNE 2005

12909/2003 – COMMISSIONER FOR FAIR TRADING v PETER TODD GARAY & ORS

JUDGMENT

1 HIS HONOUR: The Commissioner for Fair Trading (the Commissioner) seeks orders that Peter Todd Garay (the offender) be dealt with for contempt by reason of his having breached orders made by this Court.

2 On 5 November 2003 the Commissioner commenced proceedings in this Court by Summons and Notice of Motion for injunctions pursuant to s 138 of the Home Building Act 1989 (“HBA”) and s 65 of the Fair Trading Act 1987 (“FTA”).

3 The offender was the first defendant in those proceedings; his wife was the second defendant; the third defendant was Premier Turf Supplies Pty Limited (also known as “Premier”) and the fourth defendant was Hunter Landscaping Supplies Pty Limited (also known as “Hunter”).

4 The offender and the second defendant were directors of Premier. The second defendant was its secretary from 19 October 1999 to 18 December 2003 and the offender was its secretary from 18 December 2003. The offender and the second defendant were also directors of Hunter and the second defendant was its secretary. Each of those companies was wound up in March 2004. None of the defendants were licensed to undertake building work pursuant to Part 3 of the HBA.

5 On 10 November 2003 this Court made Interim Orders which restrained the Defendants from, in general terms, engaging in residential building and, in general terms, from representing that they were authorised to sell the “Sir Walter” variety of grass.

6 On 24 November 2003 the Court by consent made Final Injunctive Orders which corresponded to the Interim Orders. It also ordered the defendants to pay the Commissioner's costs of $7,500.00 in instalments of $2,500.00, by 24 February 2004. Those costs remain unpaid.

The First Contempt Proceedings.

7 By Notice of Motion filed 24 December 2003 the Commissioner sought Orders that the offender be adjudged guilty of contempt of Court and that he be dealt with in respect of that contempt in such a manner as the Court considered proper.

Statement of Charges .

8 A Statement of Charges, which was filed in accordance with Pt 55 r 7 of the Supreme Court Rules, particularised the breaches in the following terms:

1. That Peter Todd Garay between 27 November 2003 and 1 December 2003 knowingly breached Orders of the Court (namely Orders 1 and 2 made 24 November 2003 in proceedings 12909 of 2003) and that he did either by himself or through either or both of the Third or Fourth Defendants, or their employees or contractors,

(a) Enter into a contract with the proprietors of 12 Stringybark Place, Weston, New South Wales (premises), Mrs Helen Gaye Smith and Mr Wayne Smith, for the construction of 2 retaining walls and a driveway (works) for the sum of$14,000.00 in cash;

(b) Undertake or commence to undertake the works;

(c) Advertise to Mr and Mrs Smith that he, through either or both of the Third and Fourth Defendants, was willing, able or available to undertake residential building work, namely the works; and

(d) Represent to Mrs Smith expressly or impliedly that he, or either or both of the Third and Fourth Defendants, is or are the holder of the licence under the Home Building Act 1989.

9 The facts in respect of that matter can be briefly stated. The Smiths owned premises at 12 Stringybark Place, Weston, NSW. On 27 November 2003 Helen Smith contacted the third defendant by telephone to obtain a quotation in relation to some turfing work as well as in relation to the construction of two retaining walls which she wanted done. She was advised that the company did not construct retaining walls. Later that day the offender attended her premises. He identified himself as Peter, the owner of Premier Turf Supplies. He provided a written quotation for $14,000.00, to be paid in cash, which included the work just referred to and, in addition, the construction of a concrete driveway.

10 On 28 November 2003 the offender contacted Helen Smith by telephone and offered to reduce the quotation to $12,000.00. Later that day she accepted that quotation. Later still on the same day she was telephoned by John Bruinenberg ("Bruinenberg"), an investigator with the Office of Fair Trading ("the OFT"). He advised her that Premier was not licensed to do residential building work.

11 On 1 December 2003 two men attended at Helen Smith's home and informed her that they were from the fourth defendant’s firm. She telephoned the offender and was advised by him that the third and fourth defendants used each other to share their workload. Helen Smith then telephoned Bruinenberg. He came to her house and interviewed the workmen. Shortly thereafter the offender telephoned her. He requested that she tell OFT investigators that he was doing the job as a favour for a friend and that no money was changing hands. She declined to do so. Subsequently the offender again offered to do the work, an offer which she also refused.

12 An Amended Statement of Charges was filed on 5 March 2004. The following charges were in addition to the charges laid in the original Statement of Charges referred to earlier. The additional charges were in the following terms:

2. That Peter Todd Garay between about 9 December and 15 December 2003 knowingly breached orders of the Court (namely orders 1 and 2 made 24 November 2003 in proceedings 12909 of 2003) in that he did by himself or, alternatively by either or both of the Third of Fourth Defendants, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) enter into a contract, arrangement or understanding with the proprietor of 77 Budgeree Drive, Aberglasslyn, New South Wales, for the carrying out of residential building work, including driveways, paths and a pergola (the "Aberglasslyn Works").

(b) undertake or commence to undertake the Aberglasslyn Works.

3. That Peter Todd Garay between about 15 January and 21 January 2004 knowingly breached orders of the Court (namely orders, 1 and 2 made 24 November 2003 in proceedings 12909 of 2003) in that he did by himself or, alternatively by either or both of the Third or Fourth Defendants, or his or their officers, agents, employees, contractors, partners or associates or otherwise:


(a) enter into or seek to enter into a contract with the proprietors of 19 Huntington Way, Cardiff South, New South Wales, Mr David Cahill and Mrs Isabella Cahill for carrying out of residential building work, including driveways, paths, a retaining wall and a concrete slab for a pergola (the "Cardiff South Works") for $19,500.

(b) advertise to either Mr Cahill or Mrs Cahill or both that he, or alternatively he by or through either or both of the Third and Fourth Defendants, was willing, able or available to undertake residential building work, namely the Cardiff South Works; and
c) represent to either Mr Cahill or Mrs Cahill or both expressly or impliedly that he, or either or both of the Third and Fourth Defendants, was or were the holder of a licence under the Home Building Act 1989.
4. That Peter Todd Garay between about 8 February and 11 February 2004 knowingly breached orders of the Court (namely orders 1 and 2 made 24 November 2003 in proceedings 12909 of 2003) in that he did by himself or, alternatively by either or both of the Third or Fourth Defendants, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) enter into a contract with the proprietors of 69 Casey Drive, Singleton, New South Wales, Mr Jeffrey Thomas Garland and Mrs Pamela Garland, for the carrying out of residential building work, including constructing a retaining wall and turfing for $7,500 (the "Singleton Works");

(b) undertake or commence to undertake the Singleton Works;

(c) advertise to either Mr Garland or Mrs Garland or both that he, or alternatively he by or through either or both of the Third and Fourth Defendants, was willing, able or available to undertake residential building work, namely the Singleton Works; and
(d) represent to either Mr Garland or Mrs Garland or both that he, or either or both of the Third and Fourth Defendants was or were the holder of a licence under the Home Building Act 1989.

13 The facts pertaining to each of those matters are set out below:

John Betham (the "Aberglasslyn Works")

14 The owner of this property, David Ross ("Ross"), was a friend of the offender. Ross asked the offender to organise a concreter for him. On or about 9 or 10 December 2003 John Betham ("Betham") was contacted by the offender to undertake work constructing a concrete driveway and path and a concrete pergola area at 77 Budgeree Drive, Aberglasslyn, NSW. Betham worked as a concreter on a contractual basis for various builders in the Hunter Valley area. Betham was advised by the offender that if anyone from the OFT turned up on the job site he was to tell them that he was doing the job for the owner of the property.

15 On Monday 15 December 2003 Betham attended the work site with some labourers. A short time later a bobcat owned by either the offender or the third defendant was delivered to the site on a truck marked with the logo of Premier Turf Supplies. It was driven by a man called Steve who was an employee of the third defendant. Steve was wearing a T-shirt with the Premier Turf logo on it. Betham ordered the concrete from the fourth defendant under the third defendant’s name. The third defendant had an account with the fourth defendant, which supplied building materials to the public. Two inspectors from the OFT attended the site and Betham admitted to them that he was working for Premier. Shortly thereafter the offender arrived at the site and instructed Betham to complete the work. Betham had never met the owner of the premises. Nor had he discussed the price of the work with him.

David Brendon Cahill & Isabella Cahill (the “Cardiff South Works”)

16 David Cahill ("Cahill") and his wife Isabella Cahill owned premises at 19 Huntington Way, Cardiff South, NSW. On 9 January 2004 Cahill contacted the fourth defendant in order to obtain a quotation for the construction of a driveway and a retaining wall as well as for some turfing work which he wanted done. He was advised that the company did not undertake that type of work.

17 On 15 January 2004 the offender attended the Cahill residence. He introduced himself as Peter Garay from Hunter Landscaping Supplies. He told Cahill that he and the fourth defendant were in the area doing landscaping and turfing work and that he could undertake the work which the owner wanted done. The offender also stated that either he or the fourth defendant had landscaped a number of houses in the Cahill’s street. Cahill specified the work to be undertaken. It included the construction of an exposed aggregate driveway, an exposed aggregate footpath to the front door, a concrete path around the whole house, a concrete slab for a pergola and a retaining wall. The offender gave Cahill an oral quotation for $16,000.00, to be paid in cash. Cahill requested that the quotation be itemised.

18 On 19 January 2004 Cahill contacted the OFT and inquired about Hunter. He was advised by Bruinenberg that the company was unlicensed and that there were Supreme Court orders in existence restraining the defendants from undertaking residential building work. On 21 January 2004 the offender gave Cahill a written quotation of $19,500.00. On 23 January 2004 the offender telephoned Cahill who advised him that as he was unlicensed he (ie Cahill) would not be accepting the quotation.

Jeffrey Thomas Garland and Pamela Garland (the “Singleton Works”)

19 Jeffrey Thomas Garland (“Garland”) and Pamela Garland owned premises at 69 Casey Drive, Singleton, NSW. On 8 February 2004 Garland was inspecting his new house when the offender approached him. He said that he was from Premier and asked Garland if he wanted any turf laid. Garland indicated that he was interested. He also inquired if the offender and/or the third defendant constructed retaining walls, to which the offender answered in the affirmative. Garland advised the offender that he required two retaining walls. He provided the measurements for the walls and specified that they were to be constructed out of treated pine logs and timber. The offender provided Garland with a quotation which was written on the back of a business card belonging to the third defendant. The quotation was for $7,500.00. The offender stated that the retaining walls would cost $1,500.00 and that the remaining cost would relate to the turf and soil. Garland accepted the quotation given to him by the offender. Two days later two men attended Garland’s residence and dug postholes.

20 On 11 February 2004 Garland telephoned the OFT and was advised that there were Supreme Court orders in existence restraining the third defendant from engaging in residential building work for a period of five years. Garland telephoned the offender and told him that he wanted the work to cease. The offender stated that he could still do the turfing and retaining walls up to a metre in height. Garland declined this offer and agreed to pay the offender $750.00 for the work which he had already completed.

Second Contempt Proceedings

21 By Notice of Motion filed on 9 June 2004 the Commissioner sought further orders that the offender be adjudged guilty of contempt of court.

Statement of Charges

22 The Statement of Charges particularises the further breaches in the following terms:

1. That Peter Todd Garay between 1 May 2004 and 31 May 2004 knowingly breached orders numbered 1 and 2 made by this Court on 24 November 2003 in proceedings 12909 of 2003, in that he by himself or, alternatively by One Stop Turf Supplies Pty Ltd, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) entered into a contract with Frederick Bragg, the proprietor of 26 Ambergrove, Bolwarra Heights, New South Wales, for the carrying out of residential building work, namely, the construction of a retaining wall, (the "Bolwarra Heights Work") for the sum of Three Thousand Dollars, ($3,000.00);

(b) undertook the Bolwarra Heights Work and arranged 'for Michael Allen to carry out the construction;

(c) advertised to Frederick Bragg that he, or alternatively he by or through One Stop Turf Supplies Pty Ltd, was willing, able and available to undertake residential building work, namely the Bolwarra Heights Work; and
d) represented to Frederick Bragg either expressly or impliedly that he, or One Stop Turf Supplies Pty Ltd or Michael Allen, was or were the holder of a licence under the Home Building Act 1989.

2. That Peter Todd Garay between 1 May 2004 and 31 May 2004 knowingly breached orders numbered 1 and 2 made by this Court on 24 November 2003 in proceedings 12909 of 2003, in that he by himself or, alternatively by One Stop Turf Supplies Pty Ltd, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) entered into a contract with Douglas Dowell the proprietor of 68 Queen Street Muswellbrook, New South Wales, for the carrying out of residential building work, namely, the construction of a driveway and a retaining wall (the "Muswellbrook Works") for the sum of Eighteen Thousand Dollars, ($18,000.00) (inclusive of turfing);

(b) advertised to Douglas Dowell that he, or alternatively he by or through One Stop Turf Supplies Pty Ltd, was willing, able and available to undertake residential building work, namely the Muswellbrook Works; and
(c) represented to Douglas Dowell either expressly or impliedly that he, or One Stop Turf Supplies Pty Ltd, was or were the holder of a licence under the Home Building Act 1989.

3. That Peter Todd Garay between 1 May 2004 and 31 May 2004 knowingly breached orders numbered 1 and 2 made by this Court on 24 November 2003 in proceedings 12909 of 2003, in that he by himself or, alternatively by One Stop Turf Supplies Pty Ltd, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) entered into a contract with Edna Watcher, the proprietor of 8 Crestleigh Close, Woongarah, New South Wales, for the carrying out of residential building work, namely, the construction of a retaining wall and the construction of a concrete slab adjacent to the driveway, (the "8 Crestleigh Close Works") for the sum of Twelve Thousand Five Hundred Dollars, ($12,500.00) (inclusive of turfing);

(b) undertook the 8 Crestleigh Close Works and engaged persons, who have not been identified, to carry out the construction of the retaining wall;

(c) advertised to Edna Watcher that he, or alternatively he by or through One Stop Turf Supplies Pty Ltd, was willing, able and available to undertake residential building work, namely the 8 Crestleigh Close Works; and

(d) represented to Edna Watcher either expressly or impliedly that he, or One Stop Turf Supplies Pty Ltd, was or were the holder of a licence under the Home Building Act 1989.

4. That Peter Todd Garay between 1 May 2004 and 31 May 2004 knowingly breached orders numbered 1 and 2 made by this Court on 24 November 2003 in proceedings 12909 of 2003, in that he by himself or, alternatively by One Stop Turf Supplies Pty Ltd, or his or their officers, agents, employees, contractors, partners or associates or otherwise:

(a) entered into a contract with Mario Ranieri, the proprietor of 9 Crestleigh Close, Woongarah, New South Wales, for the carrying out of residential building work, namely, the construction of a retaining wall, (the "9 Crestleigh Close Work") for the sum of One Thousand Five Hundred Dollars, ($1,500.00);

(b) undertook 9 Crestleigh Close Work and arranged for Michael Allen to carry out the construction of the retaining wall;

(c) advertised to Mario Ranieri that he, or alternatively he by or through One Stop Turf Supplies Pty Ltd, was willing, able and available to undertake residential building work, namely the 9 Crestleigh Close Work; and

(d) represented to Mario Ranieri either expressly or impliedly that he, or One Stop Turf Supplies Pty Ltd or Michael Allen, was or were the holder of a licence under the Home Building Act 1989.

23 The facts in respect of each of those matters are set out below:

Frederick Albert Bragg (the “Bolwarra Heights Work”)

24 Frederick Albert Bragg ("Bragg") owned premises at 26 Amber Grove, Bolwarra Heights NSW. On or about 9 May 2004 the offender attended Bragg's residence and introduced himself as Peter from One Stop Turf. The offender inquired if Bragg was interested in having any turf work done. Bragg said that he was but that he had to first construct a retaining wall. The offender told Bragg that he knew someone who could arrange to erect the wall for him. The offender then quoted $6,000.00 including bobcat hire and soil for the turf work. He also agreed to provide a quotation for the cost of the wall. Bragg agreed to the work proceeding subject to agreement being reached as to cost of the wall.

25 A few days later Michael Allen, an employee of One Stop Turf Supplies Pty Ltd ("One Stop Turf"), provided a quotation of $3,000.00 for the wall and Bragg agreed to go ahead with the work. Both quotations were oral. Bragg was not at any stage given a written quotation. Upon the completion of the wall, Bragg paid Michael Allen $3,000.00 in cash. Upon completion of the turf work, Bragg paid $6,000.00 in cash. He was not provided with any receipts. Neither One Stop Turf nor Michael Allen were licensed under the HBA.

Douglas Dowell (the “Muswellbrook Works”)

26 Douglas Dowell (“Dowell”) owned premises at 68 Queen Street, Muswellbrook NSW. In or about May 2004 Dowell entered into an oral contract with the offender or One Stop Turf for the construction of a driveway and retaining walls for the sum of $18,000.00. The offender represented to Dowell that he had constructed a driveway in Queen Street, Muswellbrook when he had not done so.

27 On or about 27 May 2004 Dowell received a telephone call from Bruinenberg of the OFT who advised him that the offender was not licensed to carry out residential building work. On or about 28 May 2004 Dowell cancelled the contract.

Edna Watcher (the “8 Crestleigh Close Works”)

28 Edna Watcher ("Watcher") owned premises at 8 Crestleigh Close, Woongarah, NSW. On 24 May 2004 the offender attended Watcher's residence and introduced himself as Peter from One Stop Turf. Watcher told the offender that she required turfing work to be done as well as the construction of a retaining wall, a concrete slab for a carport, a courtyard at the back, and a concrete pathway across the back of the house. The offender agreed to undertake the work and quoted $12,500.00, to be paid in cash. Watcher was not given a written quotation.

29 The offender attended Watcher's residence on 27 May 2004. She advised him that she did not want to go ahead with the work but the offender persuaded her to do so.

30 On 28 May 2004 Watcher was visited by officers from the OFT who advised her that the offender was not licensed to do the work and that there were Supreme Court Orders in existence restraining the offender from undertaking residential building work.

31 The same day Watcher told the offender that she wanted to cancel the contract and that she wanted the work to stop. He replied that he could not stop as he had ordered the concrete and that the job was almost finished. He then offered to supply and lay the turf. Watcher declined his offer and told him that she did not want him doing any further work for her.

32 The offender ignored her directions and workmen from One Stop Turf continued to lay the turf until Watcher instructed them to stop. Watcher agreed to pay the offender the sum of $1,000.00 for work which he had completed.

Mario Renieri (the “9 Crestleigh Close Work”)

33 Mario Renieri ("Renieri") owned premises at 9 Crestleigh Close, Woongarah. In about May 2004 the offender or One Stop Turf entered into a contract with Renieri to construct a timber retaining wall at the back of his premises for the sum of $1,500.00. Renieri negotiated the contract with the offender. The offender did not give Renieri a written quotation. The wall was constructed by Michael Allen although, as was observed earlier, neither he nor One Stop Turf, for whom he worked, were licensed under the HBA.

34 One Stop Turf Supplies Pty Limited was registered as a proprietary company on 24 February 2004. Cynthia Garay, the offender’s mother, was registered as the sole director and secretary of the company. Although she held those positions and attended the premises on a daily basis, she had no input into the running of the company. The offender obtained and organised the work. He was also responsible for the overall management of the company. This company was in reality a reincarnation of the earlier businesses, Premier and Hunter, which had gone into voluntary liquidation.

The offender’s case

35 The offender, who is now aged 35 gave evidence before me. He said that he had grown up in Windsor. He left school after having obtained his School Certificate. He undertook an apprenticeship as a shop fitter although he did not complete it. He worked in that line of business until he was introduced by a friend to the business of laying turf. He gave evidence that he has been doing that type of work for the last 10 or so years. In due course he left Windsor and moved to Newcastle where he established Premier Turf Supplies Pty Limited. The business was very successful and at its peak (which was in the period between 2000 – 2003) it had 40 employees and an annual turnover of between $4 - $5 million.

36 The offender gave evidence that the advent of these proceedings, and matters of a related nature in the Federal Court, have seen a dramatic decline in the business’ fortune. As has been observed, Premier Turf eventually went into voluntary liquidation. The offender attributes the decline in its business to the adverse publicity which accompanied the present proceedings.

37 In December 2004 the offender was dealt with for contempt in the Federal Court. That offence arose out of the breach of an undertaking which the offender had given to a judge of that court in March 2003. The breach involved his making representations in October 2003 that he could sell the “Sir Walter” variety of soft leaf buffalo grass when he was restrained from doing so. He was sentenced to 2 months imprisonment in respect of that offence but the warrant committing him to prison was ordered to lie in the Registry of that court for a period of 12 months on condition that he did not contravene the original order during that period. The persons to whom he made the representations were the Smiths, the same people who are referred to in the particulars of the First set of Contempt proceedings in the present matter. To that extent the two sets of proceedings overlap. Nevertheless the offender had already committed a contempt in respect of the orders of the Federal Court, when he embarked upon the course of conduct which brings him before this Court.

38 An order was also made in the Federal Court matter that the offender pay the costs of the opposing party. That order was for a sum in excess of $70,000. The offender gave evidence that that order has occasioned him very considerable hardship. He was obliged, he said, to sell the family home in order to satisfy it. He now lives in rented accommodation. He owns another property which is subject to a mortgage but his mother, who is a pensioner and is now without any other means of support, resides there.

39 The offender was subsequently ordered to meet a further order in the sum of about $30,000 which represents the costs which were incurred by the opposing party in the Federal Court in enforcing the original costs order. The offender acknowledges that that action was necessary because he was late in meeting his obligations in satisfying the original order. His explanation for being late arose from the fact that the settlement of the sale of his house had been unavoidably delayed.

40 The offender gave evidence of the efforts that he has made to meet the anticipated costs of the Commissioner in these proceedings. It is estimated that they will be in the order of $40,000 to $45,000. Satisfying a sum of that magnitude will entail significant additional hardship for the offender. He has already received conditional approval for the refinancing of the mortgage over his property to enable him to do so.

41 The offender gave evidence that he continues to be employed in the business which has taken over from One Turf. He and his wife both work there. Their combined earnings are $800 per week. His mother is no longer involved in the business. There are now only 10 employees of the business who are all engaged on a casual basis. Apart from a number of trucks and equipment, the business has no other assets. The business itself is still viable however because the offender’s father-in-law has now obtained a builder’s license and is able to perform the building work which the business attracts. The offender continues to do jobs relating to the laying of turf.

42 The offender gave evidence that at Christmas time in 1999 he had a “complete breakdown”. He was unable, he said, to get out of bed for a period of several months. It appears that he was then suffering from a depressive illness. He gave evidence, which was not challenged, that he was also in the grips of that condition at the time when he was engaged in the conduct which brings him before the Court. A report prepared by a psychiatrist, Dr Vickery, was admitted into evidence. Dr Vickery diagnosed the offender as having experienced an “acute adjustment disorder” which was associated with the loss of his reputation and his assets. The offender is now on antidepressant medication prescribed by his local GP.

43 The offender acknowledged in giving evidence that he has also had a serious gambling problem for a number of years. He gave evidence that he began gambling when he was 16. During the period of his offending he estimated that his gambling losses were in the order of $2,000 - $3,000 per week. Those losses were financed through the business. For a period of time last year he sought the assistance of a psychologist who provided him with counselling in relation to his gambling problems. The offender readily admitted that he still retains the urge to gamble. However he gave evidence that he had not had a bet since September last year. He said that his motivation to abstain from gambling was as a result of an ultimatum which his wife had given him to the effect that if he resumed gambling she would leave him and take their three young daughters with her. The offender also has another daughter, who is now a teenager, from an earlier relationship. He continues to contribute to her upbringing.

44 The offender gave his evidence in a forthright and candid fashion. I am disposed to accept it. For example, I accept his evidence, which was not the subject of challenge, that he now seeks the advice of an inspector employed by the Department to ensure that any work which he undertakes does not breach the orders made by either this Court or by the Federal Court. It is not without significance that that person was involved in the investigation of these matters. I also accept his evidence that he was motivated in part to continue his offending behaviour because he was concerned about the fate of his 40 employees, for whom he felt a degree of responsibility. I also accept his evidence as to the other pressures which were operating upon him at the time. None of those considerations can however ultimately relieve the offender, as he appropriately recognised whilst giving evidence, from accepting the consequences of his quite irresponsible behaviour.

45 The offences committed by the offender are most serious offences of their kind. It is conceded on his behalf that the various breaches of the orders of this Court were wilful. Moreover, the offender’s conduct was deliberate and was clearly designed to thwart the orders of the Court. Furthermore, his attitude of defiance manifested itself over an extended period of time. Indeed, his offending behaviour commenced within a few days of the orders being made by this Court. The second set of offences were even more serious. Of particular concern is the fact that they were committed at a time when, as the offender well knew, the first set of proceedings for contempt were on foot.

46 It is critical that the authority of the courts is not subverted by those, such as the offender, who seek to act in defiance of orders made by the courts. As Kirby P said in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314, the particular purpose to be served in the punishment of those guilty of contempt is to ensure “the undisturbed and orderly administration of justice in the courts according to law.” See also Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435, per McHugh J at 462-3 and per Kirby J at 484-5.

47 In AG for NSW v Whiley (1993) 31 NSWLR 314 the Court said:

A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314:
“…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way.”
Being a common law offence there is no statutory maximum penalty. (at 320)

48 See also Wood v Staunton (No 5) (1996) 86 A Crim R 183.

49 It is common ground that the provisions of the Crimes (Sentencing Procedure) Act 1999 apply to the sentencing of persons convicted of contempt: see Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527. In particular it is agreed that I should have regard to the general sentencing principles set out in s 3A of that Act and that I should also take into account the matters enumerated in s 21A. Suffice it to say that I have had regard to those matters which I consider to be of particular relevance to the present matter. With the exception of paragraph (m) there are no matters within s 21A(2) itself which aggravate the offence. The offences did however involve multiple victims and a series of criminal acts. Some of those victims are said to have suffered substantial financial losses although there is no evidence before the Court as to the extent of any such losses.

50 I have also given due weight to those matters which can properly be taken into account in the offender’s favour. In particular, I have had regard to paragraphs (e), (f), (g), (h), (i) and (k) of s 21A(3).

51 A significant matter to be weighed in the offender’s favour is the fact that he has pleaded guilty: see s 22 of the Crimes (Sentencing Procedure) Act 1999. In light of the chronology with which I have been provided it cannot be said that the pleas were entered at the first reasonable opportunity. Nevertheless the entering of the pleas has “facilitated the course of justice”: see Cameron v The Queen (2002) 187 ALR 65. The Commissioner concedes that the proceedings could have been both lengthy and costly had it been necessary to establish each of the matters alleged against the offender.

52 An appropriate discount in accordance with the guideline promulgated in R v Thomson and Houlton (2000) 49 NSWLR 383 will accordingly be extended to the offender. Moreover, the offender has admitted, in affidavits filed in these proceedings, having committed each of the matters which give rise to the two sets of contempt proceedings. Even more significantly he has admitted having committed other offences of which the Commissioner was unaware.

53 This latter consideration is one of the factors which inclines me to the view that the offender is genuinely contrite about his offending conduct. He expressly apologised for his actions whilst giving evidence and it would appear that he has, somewhat belatedly it must be said, demonstrated a degree of insight into the significance of his offending behaviour and its impact not only upon himself and those close to him, but upon the broader community also.

54 I am fortified in that view by the opinion of Ms May who prepared a pre-sentence report in respect of the offender. She observed that both “his attitude and business dealings have undergone a marked transformation since the occurrence of these breaches … [his] attitudinal change is also viewed in a positive light in respect of his future behaviour”. Whereas he was initially reported to be “reluctant to accept responsibility” for his behaviour, Ms May concluded that the offender has now “adopted a more realistic appraisal for his situation”.

55 The offender is also entitled to have weighed in his favour the evidence which attests to his good character. A number of testimonials were tendered on his behalf. They speak eloquently of his personal qualities including the fact that he is a devoted father. I accept the evidence that the offender has enjoyed considerable success as a sportsman. I also accept that he has been engaged in supporting and contributing to a number of very worthy charitable organisations.

56 I am prepared in all those circumstances to disregard the offender’s only prior involvement with the criminal justice system which concerned the possession of cannabis more than 10 years ago.

57 I am also disposed to the view that the offender has good prospects of rehabilitation. I am prepared to conclude that this episode of his life, with all the publicity and opprobrium which has accompanied it, has had a salutary effect upon him and that he is unlikely in those circumstances to re-offend.

58 I have been provided with a number of what are said to be comparable cases involving contempt. I have derived particular assistance from Department of Fair Trading v O’Keefe [2002] NSWSC 398; Director-General of the Department of Fair Trading v Yang (2002) 132 A Crim R 438; Commissioner for Fair Trading v Oliver [2004] NSWSC 732 and Commissioner for Fair Trading v Elasaad [2005] NSWSC 414. Ultimately, however, each case turns on its own facts and I must exercise my discretion in the present case upon the material which is before me.

59 The sentences to be imposed must reflect the law’s concern that the effectiveness of the courts in authoritatively determining disputes is not undermined by the deliberate defiance of orders which are made by them. Notwithstanding the matters which are properly to be taken into account in the offender’s favour, I am of the view that the criminality displayed by the offender warrants the imposition of nothing less than a custodial sentence. Because I am required to impose sentence in respect of two matters, I must also have regard to considerations of totality and to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. I am prepared to make a finding of “special circumstances” in respect of the second sentence which I shall impose but only to ensure that the relationship between the overall effective head sentence and the overall effective non-parole period is in accordance with the normal statutory proportion.

Orders

60 1 In respect of each of the four charges of contempt which constitute the first set of proceedings the offender is sentenced to imprisonment for a period of four months. Each of those sentences is to be served concurrently. Although I consider that nothing other than a sentence of imprisonment is required I do not consider that a sentence of more than six months is called for particularly given the offender’s favourable subjective matters.

2 In respect of each of the four charges of contempt which constitute the second set of proceedings the offender is sentenced to a non-parole period of 8 months to commence immediately at the expiration of the sentences imposed in respect of the first set of proceedings. The balance of each of those terms is 4 months. Each of those sentences are to be served concurrently with each other. The total effective non-parole period is thus one of 12 months with the total effective overall sentence being one of 16 months.

3 I direct that each of the above sentences is to be served by way of periodic detention. I note that the offender has been assessed as suitable for periodic detention and that he has signed the requisite undertaking pursuant to s 66(1)(f) of the Crimes (Sentencing Procedure) Act 1999 .

4 The first set of sentences is to commence on 8 July 2005. The second set of sentences is to commence immediately upon the expiration of the first set of sentences. I direct that the defendant report to Tomago Periodic Detention Centre at 8.30 am on 9 July 2005. I direct that the offender is to be released on parole at the expiration of the non-parole period imposed in respect of the second set of offences.

5 I order that the offender pay the plaintiff’s costs.

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