Commissioner of Fair Trading, Department of Commerce v Jenness

[2007] NSWSC 439

CITATION:	COMMISSIONER OF FAIR TRADING, DEPARTMENT OF COMMERCE v JENNESS [2007] NSWSC 439 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5.2.07, 9.2.07, 13.2.07, 1.3.07, 9.3.07, 27.4.07, 4.5.07
JUDGMENT DATE :	4 May 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	In respect of the charge of contempt, the offender is sentenced to a non-parole period of four months to commence on 11 May 2007 and to expire on 10 September 2007, with a balance of term of two months to expire on 10 November 2007. I direct that the above sentence be served by way of periodic detention. I note that the offender has been assessed as suitable for periodic detention and has signed the requisite undertaking pursuant to s.66(1)(f) of the Crimes (Sentencing Procedure) Act 1999. I direct the offender to report to Parramatta Periodic Detention Centre on Friday 11 May 2007 at a time to be advised by Sutherland Probation and Parole Service. I order that the offender pay the plaintiff’s costs.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – Contempt of court – Defendant carried on business of a motor vehicle repairer in contravention of Court Order – Pre-sentence report – Assessment of subjective factors – Imposition of sentence
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2001 (NSW) Crimes Legislation Amendment (Periodic & Home Detention) Act 2002 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Motor Vehicle Repairs Act 1980 (NSW)
CASES CITED:	Commissioner for Fair Trading v Elasaad [2005] NSWSC 414 Commissioner for Fair Trading v Oliver [2004] NSWSC 732 Commissioner for Fair Trading v Partridge [2006] NSWSC 478 Department of Fair Trading v O'Keefe [2002] NSWSC 398 Director General, Department of Fair Trading v Yang (2002) 132 A Crim R 438 Manian (No 2) (1992) 26 NSWLR 309
PARTIES:	COMMISSIONER OF FAIR TRADING, DEPARTMENT OF COMMERCE v. DAVID CLIVE JENNESS
FILE NUMBER(S):	SC No. 12709 of 2006
COUNSEL:	P: V. Griswold D: In person
SOLICITORS:	P: I.D. Catt D: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 4 MAY 2007

No. 12709 of 2006

COMMISSIONER OF FAIR TRADING, DEPARTMENT OF COMMERCE v. DAVID CLIVE JENNESS

JUDGMENT

1 HIS HONOUR: The plaintiff, The Commissioner of Fair Trading, Department of Commerce, commenced proceedings by way of notice of motion dated 20 December 2006 and filed on that date. The motion was returnable on Monday 5 February 2007 and it came before me in the duty judge list.

2 The orders sought were as follows:-

(a) That the defendant be adjudged guilty of contempt of this Court and that he be dealt with in such manner as the Court considers proper.

(b) That the defendant pay the plaintiff’s costs in these proceedings.

(c) Such other orders as the Court deems necessary.

3 The plaintiff also filed, on 20 December 2006, a Statement of Charges in which the plaintiff alleged that the defendant was guilty of contempt of this Court in knowingly breaching orders of the Court. The statement recorded that:-

“(1) On 19 June 2006, this Court made orders against the defendant. Attached to the Statement of Charges was a copy of the orders made by this Court on 19 June 2006. The terms of the orders were as follows:-
(a) that the defendant, whilst not being the holder of a licence or certificate under Part 3 of the Motor Vehicles Repairs Act 1980 … be restrained until further order, whether personally, in partnership, through a corporate structure, through the agency of another or through an employee, contractor or otherwise from:-
(i) carrying on or advertising that he carries on or is willing to carry the business of a repairer in respect of any repair work as defined in s.4(1) of the Motor Vehicle Repairs Act 1980 ;

(ii) doing any such repair work in connection with the business of a repairer as defined in s.4(1) of the Act; and

(iii) representing, by advertisement or otherwise, that he does or is willing to do repair work as defined in s.4(1) of the Act.
(b) the defendant pay the plaintiff’s costs of this motion.”

4 On 5 February 2007, when the notice of motion was first returnable before me, there was no appearance on behalf of the defendant when called. The plaintiff relied, in support of the notice of motion, on the affidavits of Kenneth Buscombe sworn on 8 December 2006 and the affidavit of John Kenny also sworn on 8 December 2006, together with the affidavits of service of the notice of motion and of the statement of charges and of the two affidavits to which I have referred.

5 At the hearing on that date, an Evidentiary Certificate was tendered under s.78(2) of the Motor Vehicle Repairs Act 1980 (NSW) dated 8 January 2007 (Exhibit A).

6 On 6 February 2007, I proceeded to receive evidence tendered on behalf of the plaintiff. The evidence in support of the notice of motion established beyond reasonable doubt that, on 6 September 2006, an inspection of the defendant’s premises revealed that the defendant had continued to carry on the business of a motor vehicle repairer within the meaning of the Act.

7 In particular, the affidavit evidence relied upon by the plaintiff established, beyond reasonable doubt, that Mr Kenny’s conclusion stated in his affidavit (paragraph 19) that he believed the defendant had been carrying on work as a motor mechanic, panel beater and spray painter contrary to the Motor Vehicle Repairs Regulation 1999 (NSW) was well supported.

8 The evidence also established that the defendant had never been the holder of the requisite licence or tradesperson’s certificate and had not been exempt under s.5 of the relevant Act.

9 Accordingly, the plaintiff’s evidence on the application supported findings that the defendant, contrary to the order made by Whealy J on 19 June 2006, had continued to carry on work as a motor mechanic, panel beater and spray painter contrary to the abovementioned provisions of the Motor Vehicle Repairs Regulation 1999 (NSW).

10 On 9 February 2007, I adjudged the defendant to be guilty of contempt of this Court, in that he knowingly breached the Court’s orders made on 19 June 2006 by the following conduct:-

“(i) On 6 September 2006 at premises at Unit 6, 3-11 Flora Street, Kirrawee, the defendant did carry out repair work for reward being wheel bearing and steering rack repairs on a Ford Mondeo registration number AXT 10M owned by Rebecca Carol Pollock, the repairs being in the class of repair work of a motor mechanic as defined in section 4(1) of the Motor Vehicle Repairs Act 1980 (‘MVRA’).
(ii) On 6 September 2006 at premises at Unit 6, 3-11 Flora Street, Kirrawee, the defendant did carry out repair work for reward being repairs to rust around the rear window and the quarter panel of a Holden Commodore registration number AI 94 SU owned by Glenn Michael Clough, the repairs being in the class of repair work of a panel beater as defined in section 4(1) of the MVRA.”

11 On 9 February 2007, the following orders were also made:-

“1. The Defendant David Clive Jenness attend the Supreme Court Law Courts Building, Queens Square located at 184 Phillip Street, Sydney at 2.00 pm on Tuesday 13 February 2007.
2. In default of an appearance at that time and place, the Plaintiff will be at liberty to obtain an order for the arrest of the Defendant without further notice to the Defendant.
3. A copy of these orders be served on the Defendant by no later than 4.00 pm on 9 February 2007.
4. Plaintiff has leave to request proceedings be re-listed at short notice at which time the Defendant is to be brought before the Court in the event that he does not appear on Tuesday 13 February 2007 at 2.00 pm and such request to be made to my Associate.
5. Costs are to be reserved.”

12 On Tuesday 13 February 2007, the proceedings were again listed. The defendant appeared unrepresented. On that occasion, Ms Griswold, on behalf of the plaintiff, handed up a document setting out costs orders sought by the plaintiff. On the same day, I determined that the proceedings should be stood over in order to permit the defendant the opportunity of putting on any evidence. The question of costs was reserved. The proceedings were stood over for hearing on 1 March 2007.

13 The finalisation of the proceedings were further deferred on 1 March 2007 to enable a pre-sentence report to be received from the Probation and Parole Service. A pre-sentence report has now been received (dated 25 April 2007). It was tendered at the resumed hearing on 27 April 2007 (Exhibit C).

14 The sources of information relied upon for the purposes of that report included interviews with the defendant. There was no independent information provided in respect of police facts and criminal history. The author of the report, Mr Peter Ikin, Acting District Manager, Sutherland District Office, also had access to New South Wales Department of Corrective Services records.

15 The report indicates that the defendant first came to the notice of the Probation and Parole Service when he was placed on a supervised Bond on 7 December 1989 to be of good behaviour for two years following his conviction for assault police.

16 On 9 May 1991, he appeared on a matter of drive high range prescribed concentration of alcohol before the Sutherland Local Court. A community service order of 150 hours was imposed with a four year disqualification from driving. His community service order was completed in November 1991.

17 The pre-sentence report reveals that the defendant came from a family background which was marked by argumentation between his parents and to the eventual separation of his parents when he was 15 years of age.

18 The defendant spent time in Yasmar Juvenile Detention Centre for being uncontrollable and two years as a patient in the Arndell Unit at North Ryde due to hyperactivity. It is also said that he spent a period of time in former Chelmsford Private Hospital when he received electro-convulsive therapy at the age of 12. According to the defendant, he is estranged from all members of his immediate family.

19 The defendant obtained his school certificate at age 15 years and undertook an apprenticeship as a fitter and turner with the Royal Australian Navy. It appears that he was a successful employee with that service for some seven years. Subsequently, he obtained employment servicing various types of vehicles as well as performing body repair work to vehicles.

Assessment of subjective factors

20 The defendant is presently aged 36 years (date of birth 21 May 1969). He has not previously been convicted of any serious criminal offences. He has had somewhat of a disrupted upbringing, although, as noted above, he has managed in his earlier life to obtain qualifications and has held employment.

21 According to the pre-sentence report, the defendant showed some contrition for his offence, admitting that he now realised that he should have attended court when required. What has been assessed as a somewhat resolute but inflexible character is attributed, at least in part, to his early development having to fend for himself in his teenage years. It is stated that he did not appear to be a malicious person.

22 The pre-sentence report states that the defendant is unlikely to benefit from the supervision by the Probation and Parole Service, but that he has been assessed as suitable for a Community Service Order in accordance with the provisions of s.86(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and he has signed an undertaking as required by s.88(1)(e) of that Act.

23 The pre-sentence report also states that the defendant is eligible and has been assessed as suitable for a Periodic Detention Order in accordance with the requirements of s.65A and s.65B of the Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 (NSW) and s.66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and he has signed an undertaking as required by s.66(1)(f) of that Act.

24 I have considered the question as to whether the contempt committed by the defendant requires the imposition of a custodial sentence, given the evidence which establishes wilful disobedience by the defendant of an order of this Court.

25 The contempt committed by the defendant is to be seen against the background of prior convictions against him for contraventions of the Motor Vehicle Repairs Act 1980 (NSW) (on 1 May 2003 and 5 December 2005). In this respect, copies of certificates of conviction have been tendered and are comprised, in part, as Exhibit E. The conduct which constitutes the contempt of this Court, again, reflects the defendant’s disregard of the law and of the order made against him by this Court on 19 June 2006.

26 The legislation contravened by the defendant is plainly designed to protect and advance the public interest. The order made by Whealy J on 19 June 2006 directly imposed an additional legal obligation on the defendant which the defendant chose to completely disregard. There is no evidence of any mitigating circumstances which would reduce the objective culpability of his conduct. The rule of law in our society is premised, in part, upon those who are bound by such orders obeying them. Wilful disobedience of such orders can usually be expected to attract a custodial sentence.

27 In the present proceedings, I have had regard to both the objective circumstances and the subjective circumstances as revealed in the pre-sentence report and the assessment made in that report of the defendant.

28 I have also taken into account that the defendant is not represented and, had he been represented, on might expect there to have been evidence adduced on his behalf.

29 In Commissioner for Fair Trading v Partridge [2006] NSWSC 478, Bell J identified the matters to be taken into consideration when sentencing for the offence of contempt. The following matters were there discussed:-

(a) the seriousness of the contempt proved;

(b) whether the contemnor was aware of the consequences to himself of what he did;

(c) the reason for the contempt;

(d) whether there has been any apology or public expression of contrition;

(e) general and personal deterrence;

(f) denunciation of the contempt;

(g) the character and antecedents of the contemnor.

30 The principles applicable to the punishment of contempt, accordingly, are well established. In Manian (No 2) (1992) 26 NSWLR 309, Kirby P (as he then was) stated the rationale for punishing a contemnor at 314 as follows:-

“A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, namely, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, 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: see Director of Public Prosecutions v J John Fairfax & Sons Limited (1987) 8 NSWLR 732 at 741.”

31 I have borne in mind the importance of specific and general deterrence in determining the sentence to be imposed.

32 Considerations such as these are to be examined in the context of s.3A and s.21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

33 I have considered the mitigating and aggravating factors in the present circumstances. I have referred earlier to the deliberate defiance of the order of the Court, being an order ultimately directed to the protection of consumers. On the other hand, there is no evidence of consumers in fact having suffered actual prejudice by the offender’s conduct. Similarly, the contempt offences do not involve interference with the administration of criminal justice. These matters having been said, the deliberate defiance of the Court’s order constitutes the offenders’ conduct a serious offence. He has not expressed any contrition or remorse directly to this Court.

34 Section 5(1) of the Crimes (Sentencing Procedure) Act requires that a sentence of imprisonment not be imposed upon an offender unless the Court is satisfied, having regard to all possible alternatives, that no penalty other than imprisonment is appropriate.

35 Section 5(2) of that Act requires that a Court sentencing an offender to imprisonment for six months or less must indicate to the offender, and make a record of, its reasons for doing so, including its reasons for deciding that no penalty other than imprisonment is appropriate.

36 I have taken into account the factors arising under s.21A of the Act which require attention in the circumstances of the present proceedings. I do not consider that there are any specific aggravating factors arising under s.21A(2) to which regard must be had.

37 I have had regard in this respect in particular to the following:-

(a) The offender’s expression of contrition to Mr Ikin.

(b) The offender’s prior history which includes offences under the Motor Vehicle Repairs Act 1980 (NSW) but does not, otherwise, however establish the offender as having a significant criminal history.

(c) The assessment of the offender as reflected in the pre-sentence report dated 25 April 2007.

38 I have considered the application of the provisions of s.5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In particular, s.5(1) provides:-

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

39 I have, as required, considered whether or not the defendant’s contempt may be appropriately punished by way of the imposition of a monetary penalty and whether or not appropriate punishment in the form of an order requiring the defendant to undertake community service work is appropriate.

40 In determining that no penalty other than imprisonment is appropriate, I have had regard to the wilful and persistent nature of the contempt committed by the defendant by the conduct to which I have referred and the absence of any evidence or material which mitigates the seriousness of that offence. The affidavit evidence of Kenneth Buscombe sworn on 7 March 2007 reflects the defendant’s attitude to the conduct constituting his contempt. On 1 March 2007, the defendant provided an undertaking to this Court (Exhibit D), inter alia, to refrain from undertaking any repair work as defined in s.4(1) of the Motor Vehicle Repairs Act 1980. Mr. Buscombe’s last-mentioned affidavit indicates that, on 6 March 2007, the defendant was undertaking motor vehicle repair work. The plaintiff does not seek a finding that the defendant was in breach of the undertakings given on 1 March 2007. I am, accordingly, aware of the limitation upon the use to which this evidence may be put, and, accordingly, simply note that it does not reflect any contrition on the defendant’s part and it does not augur well for his rehabilitation.

41 I have been provided with a number of what are said to be comparable cases involving contempt and I have derived particular assistance from them: 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; Commissioner for Fair Trading v Elasaad [2005] NSWSC 414; and Commission for Fair Trading v Partridge (supra). 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.

42 The sentence 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.

43 The report of Mr Ikin does address sentencing options, in particular, as I have stated, the defendant’s suitability for supervision by the Probation and Parole Service, his suitability for a Community Service Order under s.86(1) of the Crimes (Sentencing Procedure) Act and his suitability for a periodic detention order in accordance with s.66(1) of that Act.

44 I have given close consideration as to whether or not a community service order is appropriate. The history in this matter reveals the defendant’s complete disregard for the law as expressed in the Motor Vehicle Repairs Act 1980. I do not consider a community service order would be appropriate, given the nature and the circumstances of the offence which I have earlier mentioned.

45 I am obliged to consider the issues of specific and general deterrence in determining the appropriate sentence. I am of the opinion, in particular, as far as specific deterrence is concerned, that a term of imprisonment is warranted. I have considered all possible alternatives and, having done so, I remain of the opinion that no penalty other than imprisonment is appropriate. In that respect, I propose that the sentence to be imposed be served by way of periodic detention.

46 I am of the opinion that the appropriate sentence is that the defendant be sentenced to a term of imprisonment of six months, the term of that sentence to commence from 11 May 2007, the defendant not having been in custody prior to today. I set a non-parole period of four months to commence on 11 May 2007 and to conclude on 10 September 2007. Such sentence is to be served, as I have stated, by way of periodic detention.

47 In accordance with the provisions of s.66(1) of the Crimes (Sentencing Procedure) Act 1999, I am satisfied that:-

(a) The defendant is a person above the age of 18 years and is a suitable person to serve the sentence by way of periodic detention.

(b) That it is appropriate in all the circumstances that the sentence be served by way of periodic detention.

(c) That there is accommodation available at a periodic detention centre for the offender to serve the sentence by way of period detention.

(d) That the offender has signed an undertaking to comply with the offender’s obligations under the periodic detention order.

Orders

48 In respect of the charge of contempt, the offender is sentenced to a non-parole period of four months to commence on 11 May 2007 and to expire on 10 September 2007, with a balance of term of two months to expire on 10 November 2007.

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

50 I direct the offender to report to Parramatta Periodic Detention Centre on Friday 11 May 2007 at a time to be advised by Sutherland Probation and Parole Service.

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

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07/05/2007 - Amendment from Silverwater Periodic Detention Centre to Parramatta Periodic Detention Centre - Paragraph(s) 50