Commissioner for Fair Trading v Peter Todd Garay

[2010] NSWSC 218

CITATION:	Commissioner for Fair Trading v Peter Todd Garay [2010] NSWSC 218
HEARING DATE(S):	05/02/10, 12/03/10
JUDGMENT DATE :	25 March 2010
JUDGMENT OF:	Hidden J
DECISION:	Charges 2 - 4, 6 - 8, FT 6 months from 25.03.10. Charges 10 - 12, 18 months, NPP 6 months, from 25.03.10.
CATCHWORDS:	CRIMINAL LAW - contempt of court - breaches of orders of Grove J restraining offender from conduct in relation to residential building work - criminal history, including previous breaches of the same orders - gambling, mental health issues
LEGISLATION CITED:	Home Building Act 1989
CATEGORY:	Sentence
CASES CITED:	Commissioner for Fair trading v Garay & Ors [2009] NSWSC 1196 Buchanan Turf Supplies Pty Ltd v Premier Turf Supplies [2004] FCA 1694 Commissioner for Fair Trading v Garay & Ors [2005] NSWSC 647 Veen v The Queen [No. 2] (1987-88) 164 CLR 465
PARTIES:	Commissioner for Fair Trading (Plaintiff) Peter Todd Garay (Offender)
FILE NUMBER(S):	SC 2003/12909
COUNSEL:	GJ Sarginson (Plaintiff) S Hughes (Offender)
SOLICITORS:	Christopher Laird Pacey (Plaintiff) Bell Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 25 March 2010

2003/12909 Commissioner for Fair Trading
v
Peter Todd Garay

JUDGMENT

1 HIS HONOUR: The offender, Peter Todd Garay, stands for sentence after being found guilty of contempt of court. On 10 November 2009 I published a judgment in which I found established 9 charges of contempt, being breaches of orders made by Grove J in November 2003: Commissioner for Fair Trading v Garay & Ors [2009] NSWSC 1196. Those orders and the background to the proceedings before me are to be found in that judgment at [1] – [25].

2 The facts giving rise to the 9 charges which I found proved are set out in the judgment, and need not be repeated. They relate to the offender’s dealings with the owners of three properties in the Hunter area. In each case I found him guilty of 3 charges:

representing himself, expressly or impliedly, as the holder of a licence under the Home Building Act ;
contracting, by himself and in association with his father-in-law, Lindsay McGoldrick, to undertake residential building work;
undertaking residential building work, again in association with Mr McGoldrick.

In respect of each charge, I was satisfied that his conduct was, to his knowledge, in breach of one or other of the orders of Grove J.

3 The charges of which he was found guilty relating to the Van Der Linden property, charges 2 - 4 in the statement of charges, arise from events between mid June and early July 2007. The facts are to be found at [26] – [45] of my judgment. The charges relating to the Uebergang property, charges 6 – 8, arise from dealings in July 2007, and the facts are to be found at [46] – [59]. The charges relating to the Challinor property, charges 10 – 12, arise from events between February and April 2008, and the facts are set out at [60] – [94].

4 The offender was aged between 37 and 38 at the time of the offences, and is now 40. He has previously been in contempt of court, a matter to which I shall turn in a moment. Otherwise, he has a criminal history which would usually be seen as relatively minor. However, it includes a conviction for an offence of dishonesty and more than one entry for driving whilst disqualified, an offence which also involves disobeying a court order.

5 In 2004, in the Federal Court of Australia, the offender was found guilty of contempt by Bennett J because of breaches of an order made the previous year by Hely J relating to his business as a turf supplier. It is unnecessary for present purposes to examine the facts of that matter. Bennett J sentenced him to imprisonment for 2 months, but ordered that the commitment warrant lie in the registry for 12 months upon his providing certain undertakings: Buchanan Turf Supplies Pty Ltd v Premier Turf Supplies [2004] FCA 1694.

6 More importantly, on 13 June 2005 the offender was dealt with by Buddin J after he pleaded guilty to 8 charges of contempt, arising from breaches of the same orders of Grove J with which the present proceedings are concerned: Commissioner for Fair Trading v Garay & Ors [2005] NSWSC 647. His Honour sentenced him to terms of imprisonment aggregating 16 months, with a non-parole period of 12 months, to be served by way of periodic detention. Again, it is unnecessary to detail the facts of those offences. It is sufficient to say that they involve breaches of the orders broadly similar to those for which he now stands for sentence. They arose from his dealings with the owners of eight properties over a period between late 2003 and mid 2004. His Honour described those offences as “most serious”, noting that the breaches of the orders were wilful and that the offender’s conduct was “deliberate and clearly designed to thwart the orders of the Court”: at [45].

7 The offender was educated to School Certificate standard. In his mid twenties he commenced a turf supply business, which over the ensuing years became successful and profitable.

8 He is married and is the father of four children, one of them from a previous relationship. They range in age from 5 to 18. Because of the present offences, and against the background of his previous offending, the marriage has broken down and he currently lives with his sister. He maintains a professional relationship only with his wife, who conducts a turfing and gardening business for which he acts as a salesman. He gave evidence that he has lost contact with his children, a fact which he attributes to his own behaviour.

9 In his mid teenage years he took to gambling on horse and dog racing, and this developed into an addiction. As his turf supply business grew, he was in a position to gamble substantial sums of money. It appears that it has been his gambling and his related depressive illness which have led to his offending behaviour. There was evidence to that effect before Bennett J and Buddin J.

10 I have a report of Mr Steve Henkelman, psychologist, whose previous experience includes working for 5 years as a Probation and Parole officer. The offender revealed to Mr Henkelman that he had been adopted, a fact of which he became aware at the age of 15. He still does not know the identity of his natural parents. He described this discovery as “a life altering and shattering experience”. He attributed to it a decline in his lifestyle and behaviour, including his addictive gambling. This, he said, was exacerbated by the separation and subsequent divorce of his parents when he was 18 years old, in circumstances which he found distressing. He remained with his mother, and assumed much of the responsibility for her support.

11 In the proceedings before Bennett J there had been a psychological report, and there was a psychiatric report before Buddin J. Apart from a bare reference in the psychiatric report to the divorce of his parents, these personal revelations were not to be found in either report. In particular, there was no suggestion that his gambling problem may have had its origin in the distress caused by his discovery that he was adopted. He told Mr Henkelman that he had never before discussed the impact of his adoptive status with anyone, and the effect of what he said was that his parents’ divorce had been particularly devastating to him because it compounded a pre-existing psychological vulnerability created by his discovery of that status.

12 In discussing the offences with Mr Henkelman, he acknowledged that he was motivated by an insatiable “greed” and a desire to earn more money to feed his gambling habit. His behaviour had resulted in substantial financial losses over many years but this, it seems, had not provided him with sufficient incentive to address his unlawful behaviour.

13 The author of the psychological report in the proceedings before Bennett J, Dr Delahunty, suggested that he should go onto a plan of controlled gambling to wean him off his addiction. In the report, of May 2004, she recorded that he told her that he had complied with this regime for about a week and was “over gambling”. She reported that her impression was that “he is not yet ready to take the necessary steps to address his mental health and lifestyle issues.” In evidence before me, he admitted that he had lied when he suggested to her that his gambling was under control.

14 He told the psychiatrist whose report of January 2005 was before Buddin J, Dr Vickery, that he had been a compulsive gambler but had “stopped completely” about four months previously after his wife delivered him an ultimatum. In evidence before Buddin J, he said that he retained the urge to gamble but had not done so since September 2004 because his wife had threatened to leave him and take the children with her if he did: see his Honour’s judgment at [43].

15 He also told his Honour in evidence that he had terminated counselling with Dr Delahunty because he decided that he just had to “have the will to stop doing it”. Nevertheless, his gambling continued. In evidence before me, he said that he realised that he could not control his addiction without professional assistance. He started to attend Gamblers Anonymous shortly after he and his wife separated, and he has been attending meetings regularly for the past six months.

16 Mr Henkelman observed that in the past the offender had shown no “sign of real remorse or desire to change his behaviour due to his ongoing and persistent gambling”. His impression at the time he saw him, however, was that he did wish to deal with the “underlying psychological issues” leading to the gambling problem. In particular, he expressed himself to be willing to undergo intensive counselling to deal with the issues relating to his adoption and his feelings about his parents’ divorce.

17 Mr Henkelman saw him as a “broken man”, and said of him:

“My assessment as a result of Mr Garay’s presentation to me today is that he is at a genuine point of wanting to make changes in his life so that he never has contact with the law again and so that he can go on to be the husband and father he should always have been.”

By way of treatment, he recommended that the offender should attend counselling sessions with him on a weekly basis for at least six months, and he proposed referring him to a psychiatrist at a regional hospital for a review of his depressive condition and the prescription of his medication. He also recommended that he should continue attendance at Gamblers Anonymous, and should be referred to Salvation Army Adoption Services to make contact with his birth parents.

18 In his evidence before me, the offender expressed his remorse for these offences. I have received a pre-sentence report, from which it appears that he told its author that he was not guilty of any of the offences. However, in evidence he acknowledged that that was not the truth. That said, the genuineness of his remorse and of his acknowledgement of guilt is questionable. In some of the answers he provided in cross-examination he appeared not to accept the mental element which I found established in relation to each of those charges, that is, that he was knowingly in breach of the orders of Grove J. What this evidence conveyed to me was that he accepted that he had been found guilty, but was still unwilling or unable to acknowledge the extent of his criminality. Nevertheless, when it was put to him that he understood “full well” that the orders prevented him from doing what he did, he said:

“I probably did … I was looking for every way to get around them Court orders. I had a gambling addiction and that many debts piling up around me, I was looking for every way that I could get a dollar.”

19 He expressed a determination to rehabilitate himself and avoid further offending, saying that his behaviour had been “unacceptable” and adding, “I just need to tidy me act up and whatever happens to me happens to me and I can move on and be a better person hopefully because of this.” He said that his situation “really hit home” because he had absolutely nothing and his children, to whom he had caused embarrassment, had gone because of his “selfish” acts. He said, “I am at the bottom and I really don’t think that I can get any lower than how I feel today.”

20 This evidence, sincere as it may sound, calls for some scrutiny. He had assured both Bennett J and Buddin J that he would not re-offfend. In evidence before Bennett J, he said that he was sorry and “I just want to start again and hopefully today we can move forward.” He gave evidence before Buddin J that there was “no chance” of his being again in breach of Grove J’s orders. He told his Honour that the debts he had incurred through his gambling and the legal proceedings had required him to sell the family home, and that he did not think he could “ever repay” his children for what he had done. In cross-examination before me, he agreed that the effect of what he told Buddin J was that he had “hit rock bottom”.

21 Moreover, he gave evidence before Buddin J of an arrangement with his father-in-law, then a licensed builder. He said that when Mr McGoldrick was engaged for residential building work, he would normally be brought in to do the turf work and supply the material. He assured his Honour that Mr McGoldrick contracted directly with the owners of the property, and that that had nothing to do with him. He added that if he was unsure whether he was entitled to do any work consistently with Grove J’s orders, he would consult Mr Kevin Michaelis, an investigator with the Office of Fair Trading in the relevant area. This, of course, is the very material upon which he relied, unsuccessfully, in the proceedings before me.

22 In the light of all this, Mr Sarginson, for the Commissioner, submitted that I should reject the offender’s claim, yet again, that he is genuinely remorseful and has reached a turning point in his life such that he is committed to reform. Mr Sarginson’s position was that I should see him as a persistent and unrepentant offender. He also argued that I should be sceptical about his evidence concerning the relationship between his gambling problem and his discovery that he was adopted, together with the anxiety resulting from his parents’ divorce. As I understand it, Mr Sarginson accepted that he had endured those personal problems during his teenage years but argued that I should not accept his claim, made for the first time, that they led to the onset and development of his addiction. He submitted that this claim, and the offender’s attendance at Gamblers Anonymous meetings, were simply devices to enable him to make out a different case from that which he had presented to Buddin J.

23 There is considerable force in these arguments, and I have given them careful consideration. On the whole of the evidence, I am sceptical about the offender’s claim to be remorseful and I am guarded about his prospect of rehabilitation. Nevertheless, I think there is some prospect, particularly after a period of conditional liberty subject to supervision and appropriate treatment for his depression and his gambling problem. Not without some hesitation, I accept that there is a connection between his gambling and the discovery that he was adopted and the effect upon him of the breakdown of his parents’ marriage. He has been consistent in his account that his pattern of gambling dates from his teenage years, and I find it plausible that the onset of an addiction in one so young was the product of a serious emotional problem of some kind.

24 His contact with Gamblers Anonymous is a significant step forward, even if it was motivated primarily by the need to present a favourable case on sentence. With the breakdown of his marriage and his compromised relationship with his children, his personal life is in a parlous state. In these circumstances, Mr Henkelman has proposed a regime of counselling and treatment which I accept as realistic and appropriate.

25 In these sentence proceedings the offender was represented by Mr Hughes of counsel, who made out the best case he could in the face of considerable difficulties. Realistically, he acknowledged that custodial sentences must be imposed. However, he argued that it still would be appropriate to direct any sentence to be served by way of periodic detention or, perhaps, home detention. However, I accept Mr Sarginson’s submission that neither of those options could now be justified, and that a full time custodial sentence must be imposed.

26 These offences amounted to calculated breaches of the orders of Grove J by an offender who could have been in no doubt about the effect of those orders. The approach to sentencing for contempt of court is well established and does not need to be repeated here. I gratefully adopt the succinct summary of relevant authority by Buddin J in his judgment at [46] – [48]. The offender’s history of defiance of court orders emphasises the need on this occasion for particular weight to be given to considerations of retribution and deterrence, both general and personal: Veen v The Queen [No. 2] (1987 – 88) 164 CLR 465 at 477.

27 I am mindful that this will be his first experience of prison. In the light of his personal situation and his need for treatment and counselling, I find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. This will be reflected in the sentences for the offences relating to the Challinor property, and in the aggregate sentence.

28 I had contemplated passing partly cumulative sentences for the 9 offences, in recognition of the fact that they were committed in relation to three different properties over a significant period of time. However, in recognition of the consideration of totality, I have decided that that course would be unnecessary and artificial. For the offences relating to the Van Der Linden and Uebergang properties I shall pass concurrent fixed terms of imprisonment, roughly equivalent to the non-parole period which would otherwise have been appropriate. For the offences relating to the Challinor property I shall pass concurrent sentences with a non-parole period. The aggregate sentence will be imprisonment for 18 months with a non-parole period of 6 months.

29 Peter Todd Garay, for each of the offences relating to the Van Der Linden and Uebergang properties, charges 2 – 4 and 6 – 8 respectively in the statement of charges, you are sentenced to imprisonment for 6 months, to commence today and to expire on 24 September 2010. For each of the offences relating to the Challinor property, charges 10 – 12, you are sentenced to a non-parole period of 6 months, also to commence today and to expire on 24 September 2010, and a balance of term of 12 months, to commence on 25 September 2010 and to expire on 24 September 2011. I direct that you be released on parole on 24 September 2010.

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