Cossens v Petta [No 3] - [2015] WASC 492

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COSSENS -v- PETTA [No 3] [2015] WASC 492

CORAM: JENKINS J

HEARD: 22 OCTOBER 2015

DELIVERED : 22 DECEMBER 2015

FILE NO/S: CIV 2269 of 2012

BETWEEN: GLORIA LUCY COSSENS
Plaintiff
AND
PETER PETTA
Defendant

Catchwords:

Contempt of court - Contempt by breaching order - Appropriate punishment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) (SCR), O 55 r 7, O 55 r 8, O 55 r 9
Sentencing Act 1995 (WA), s 6
Sentencing Administration Act 2003 (WA)

Result:

35 days' imprisonment suspended on conditions for 28 days
If the conditions are met, Mr Petta is not obliged to serve the sentence

Category: B

Representation:

Counsel:

Plaintiff: Ms M J Elliott
Defendant: No appearance

Solicitors:

Plaintiff: Elliott & Co
Defendant: No appearance

Case(s) referred to in judgment(s):

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Wood v Staunton (No 5) (1996) 86 A Crim R 183

JENKINS J: On 30 June 2015, I convicted Mr Petta in his absence of contempt of court. On conviction, I issued a warrant of arrest for him so he could be before the court for sentence. He was arrested on that warrant, but sentencing has been delayed for a number of reasons, including because Mr Petta asked for an adjournment to obtain legal advice. He undertook to appear in court on the date to which sentencing was adjourned.
On a latter occasion, Mr Petta failed to appear in court, despite his written undertaking to do so. He provided a medical certificate to explain that non‑appearance. Mr Petta then voluntarily appeared in court again last week, and he undertook again in writing to appear on Tuesday, 20 October 2015; however, he failed to appear on that date. I then adjourned the matter to today for sentencing. Mr Petta has failed to appear in court today.
Given the history of this matter and the fact that Mr Petta has been given ample opportunity to make submissions on sentence and to obtain legal advice in respect of sentencing, I have decided to proceed to sentence him in his absence.
Contempt of court is the only non‑statutory offence under the law of Western Australia. The Rules of the Supreme Court 1971 (WA) (SCR) O 55 r 7 provides that the court may punish contempt of court by committal of the contemnor to prison or by imposing a fine on him or by both committal and fine. It further states that when a fine is imposed it may order that the contemnor be imprisoned or further imprisoned until the fine is paid.
SCR O 55 r 8 provides that when making an order of committal, the court may by order direct that the execution of the order of committal shall be suspended for such a period or on such terms or conditions as the court thinks fit.
The provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 2003 (WA) do not apply to sentencing for contempt or to the administration of sentences which are imposed for contempt. Thus, there is no prospect of release on parole or another form of early release from a sentence of imprisonment, if one is imposed, for contempt of court. Neither is there a limitation on the minimum or maximum length of a sentence of imprisonment which may be imposed for contempt. The same is true in respect of a fine. Specific punishments which are the creatures of statute, such as community service work, may not be imposed for contempt of court.
In Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [112], Hayne J described 'the cardinal feature of the power to punish for contempt' as being that it 'is an exercise of judicial power by the courts to protect the due administration of justice'.
There have been two principal ways identified by which sentencing for contempt may protect the due administration of the courts: the first is by vindicating judicial authority by the imposition of a punitive sentence, and the second is by coercing obedience to the court by the imposition of a remedial sentence. It is my view that the second is the primary purpose of these proceedings, but there is some element of the first purpose, given that the contempt is an open defiance of the court's authority.
In Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [37], Martin CJ said that authorities such as the decision in Wood v Staunton (No 5) (1996) 86 A Crim R 183 suggested to him that the matters properly to be taken into account in sentencing a contemnor for breaching an order of the court included:
(1)the seriousness of the contempt proved;
(2)the reason for the contempt;
(3)whether there has been any apology or public expression of contrition;
(4)the character and antecedence of the contemnor; and
(5)general and personal deterrence in denunciation of the contempt.
The principles relating to sentencing for contempt of court were also considered in Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425. The principles there set out were summarised by Beech J in Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [3] in the following terms:
In Dental Board of Australia v Traianou [2011] WASC 293 [39] ‑ [45], I set out some principles relevant to the determination of the appropriate punishment after a finding of contempt has been made. Subsequently, in Allbeury v Corruption and Crime Commission [2012] WASCA 84 [215] ‑ [218], the Court of Appeal set out some general principles relating to punishment for contempt. The principles may be stated in the following way:
(1)the determination of the appropriate punishment for contempt is entirely a matter within the discretion of the court. There is no maximum penalty applicable;
(2)s 6 of the Sentencing Act 1995 (WA) does not apply to the punishment of a person for contempt of court. However, it is established by authority that what is said in that section provides a sound guide in determining the appropriate punishment for contempt. Thus for contempt, as in other spheres, imprisonment is the sentence of last resort;
(3)the authorities establish that matters to be taken into account in considering the punishment for contempt of court by disobeying an order of the court include:
(a)the seriousness of the contempt proved;
(b)the contemnor's culpability;
(c)the reasons or motive for the contempt;
(d)whether the contemnor has received or tried to receive a benefit from the contempt;
(e)whether there has been any expression of genuine contrition by the contemnor;
(f)the character and antecedents of the contemnor;
(g)the contemnor's personal circumstances;
(h)personal and general deterrence; and
(i)the need for denunciation of contemptuous conduct;
(4)the generally applicable legislative provisions about parole do not apply to a sentence of imprisonment for contempt. Thus, a contemnor serves the full term of any sentence imposed;
(5)not all deliberate or wilful breaches of a court order will attract a custodial sentence, but the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court; and
(6)the breadth of the circumstances giving rise to contempt mean there is no tariff.
Turning, then, to the application of those principles to this case, the defendant's contempt is serious in the sense that it is preventing due administration of a deceased's estate principally because Mr Petta has not produced the certificate of title to the Rathay Street house to the plaintiff, the administrator of the estate.
I am advised that the plaintiff's request for a duplicate certificate of title to be issued is still pending in the office of the Registrar of Titles. In the course of these contempt proceedings, Mr Petta acknowledged to me that he had the original certificate of title. I directed him to produce it to me at his next appearance. On the next date on which he appeared, he did not produce the certificate of title.
He acknowledged to me that he had possession of it elsewhere but said that although he respected my authority, he answered to higher authorities, who he said are his parents and God. Mr Petta conveniently ignores that his mother's wish as stated in her will was that her estate be shared equally between her children. Her will did not grant Mr Petta any rights of occupation of her house after her death.
It was Mr Petta's obligation at law and to his mother to execute the will. He failed to do that because it suits him to ignore its terms. Since I made my orders, Mr Petta has deliberately flouted them because it suits him to do so. Mr Petta's contempt has facilitated him remaining in possession of the property at Rathay Street, the main asset of the estate, despite the plaintiff as administrator requesting him to vacate the premises.
In order for the plaintiff to administer the will, she required vacant possession of the house. In July this year, when Mr Petta was absent from the house, the plaintiff managed to have the locks changed on it. That action was not entirely successful in excluding Mr Petta from the property. It was only after the plaintiff arranged for extra security devices to be fitted that Mr Petta was permanently removed from it.
I am also of the view that Mr Petta's contempt may be facilitating the concealment of a crime or crimes which he has committed by using his mother's property for his own purposes and not accounting to the other beneficiaries of the estate for those estate assets. For example, neither the plaintiff nor, it seems, the other beneficiaries under the will know how much cash at hand or in the bank the deceased had when she died or what Mr Petta has done with such assets.
The evidence at the hearing before me suggested that Mr Petta had used that money to support himself since the deceased died. Production of the deceased's bank records and other bills sent to the estate after her death may disclose whether that is correct or not. By failing to comply with my order, Mr Petta has not produced the documents that may establish whether or not the estate assets have been misused.
There are two main impacts of Mr Petta's contempt which make it serious: the first is the further expense and delay in the administration of his mother's estate, the second is the blatant defiance of the court's authority to decide disputes and to enforce its orders. On the other hand, I acknowledge that apart from the public interest of maintaining the authority of the court, Mr Petta's contempt does not have any public significance.
As I stated in my reasons for decision in the substantive matter, Mr Petta, has an intense belief that he has a right to remain living in the family home either for the remainder of his life or until each of his siblings convert to this religious beliefs. His contempt is consistent with him maintaining those beliefs and refusing to concede this court's authority to determine otherwise and to enforce a contrary position.
The defendant has not made any apology or public expression of contrition for his contempt. He appears determined to ignore the terms of his mother's will, the rights of the plaintiff as the administrator of the will and the orders of this court. There is no justification for him to do so.
As to Mr Petta's antecedence, he told me that he has previously spent time in prison, but there is no evidence that he has any prior criminal convictions.
I expressed some views about his character in my reasons in the substantive application. I have no reason to change those opinions. In fact, his behaviour since the delivery of my reasons confirms my views which I expressed therein.
Mr Petta says that he has various ailments, but I have no evidence that his ailments could not be managed in prison.
Mr Petta has told me that he is a pensioner without the means to pay a lawyer; however, I have evidence that he is the owner of a residential property in Falcon which is unencumbered. I know of no reason why that property could not be used as security to obtain a loan to enable him to pay a fine.
Personal deterrence is a very relevant factor in sentencing Mr Petta. It must be made clear to him that the court has authority over him in respect of the estate of his mother. I also note that this was the second time he had been removed as an executor of a deceased estate for failing to administer the relevant will in accordance with its terms.
General deterrence is also relevant, in that other like‑minded individuals must be aware that the court will not stand by and allow its orders to be deliberately flouted.
Having regard to all of these matters, I do not believe that a fine alone will result in Mr Petta complying with my orders or that a fine alone will achieve the objects of personal and general deterrence. However, having regard to the fact that a sentence of imprisonment is a sentence of last resort, I do not think that it is appropriate that I effectively order that Mr Petta be imprisoned indefinitely until he complies with my orders. There should be some finality to this matter.
Consequently, taking into account all the circumstances, I sentence Mr Petta to 35 days' imprisonment for contempt of court. I suspend that sentence for 28 days on condition that within that time Mr Petta pay a fine of $10,000 and purge his contempt by complying with order 6 of my orders made in the substantive matter, that is, that within those 28 days he deliver to the plaintiff's solicitors by appointment all accounts, receipts or other documents in his possession, custody or control relating to the assets, liabilities and income of the estate including but not limited to all instruments of title, including the certificate of title for the property commonly known as 24 Rathay Street, Victoria Park, records of bank accounts or other estate property to be held on behalf of the administrator.
If Mr Petta has not complied with both those conditions on which I suspend the sentence within the period of 28 days, I will issue my warrant of committal. If has complied with those two conditions, he shall not have to serve this sentence of imprisonment.
Pursuant to the SCR O 55 r 9, Mr Petta may apply to me to discharge him from prison notwithstanding that the term which he has been ordered to be committed has not yet expired. He could do that, for example, if after the 28 days he was committed to prison and after that period but whilst he was serving his sentence of imprisonment, he purged his contempt.