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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWSC 647
Decision Date: 30 June 2005

CaseChat Overview and Summary

In the case of Commissioner for Fair Trading v Garay, the respondent was found to have wilfully and repeatedly breached several orders of the Supreme Court of New South Wales. The respondent was restrained from engaging in certain conduct, but failed to adhere to these orders over an extended period of time. The Commissioner for Fair Trading sought a sentencing order against the respondent for contempt of court. The case was heard in the Supreme Court of New South Wales, where the court was required to consider the nature and extent of the breaches, as well as the subjective features of the respondent that could be considered in mitigation of sentence.

The primary legal issue before the court was the appropriate sentence for the respondent's contempt of court. The court had to weigh the seriousness of the breaches against the respondent's subjective circumstances, such as their age, health, and remorse. The court also had to consider the need for deterrence and the maintenance of the integrity of the court. The respondent argued that the breaches were not wilful and that there were significant mitigating factors in their favour. The Commissioner for Fair Trading submitted that the breaches were serious and repeated, and that a substantial sentence was necessary to deter the respondent and others from engaging in similar conduct.

The court found that the respondent had indeed breached the orders of the court, and that the breaches were both wilful and repeated. However, the court also found that there were favourable subjective features in the respondent's favour, such as their age and health, as well as evidence of genuine remorse. The court considered these factors in mitigation of sentence, but ultimately determined that a substantial sentence was necessary to maintain the integrity of the court and to deter the respondent and others from engaging in similar conduct. The court sentenced the respondent to a term of imprisonment, with a non-parole period, and ordered that the respondent pay costs of the proceedings.

In summary, the Supreme Court of New South Wales found the respondent to be in contempt of court for wilfully and repeatedly breaching orders of the court. The court considered the nature and extent of the breaches, as well as the subjective features of the respondent in mitigation of sentence. The court ultimately determined that a substantial sentence was necessary to maintain the integrity of the court and to deter the respondent and others from engaging in similar conduct. The respondent was sentenced to a term of imprisonment, with a non-parole period, and ordered to pay costs of the proceedings.

Orders