Council of the City of Sydney v Mae (No 2)
[2012] NSWLEC 188
•10 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Council of the City of Sydney v Mae (No 2) [2012] NSWLEC 188 Hearing dates: 9 August 2012 Decision date: 10 August 2012 Before: Sheahan J Decision: 1. The defendant Garnet Alexander Mae is convicted on the charge of contempt detailed in the Statement of Charge filed on 16 February 2010.
2. The defendant is sentenced to perform 450 hours of community service works and ordered to pay a fine of $54,000.
3. The defendant is further ordered to pay the Council's just and reasonable legal costs and disbursements, including investigation expenses, on an indemnity basis, as agreed or assessed. Those costs and expenses are to be paid in twelve equal monthly instalments, commencing 60 days after the premises know as 20 Belvoir Street, Surry Hills are revested in the defendant.
4. The defendant is to report, within 7 days of these orders to the City District Office of the Probation and Parole Service to conclude arrangements for his community service in accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 and the undertaking he has already signed pursuant to s 86(5) of that Act.
5. Insofar as it may be required I revoke the warrant I issued on 12 March 2010 for the sheriff to arrest the defendant, and I release the defendant from the conditions attached, at my direction, to the amended Bail Undertaking entered by the defendant on 27 June 2012.
6. Exhibits other than Exhibit M2 are to remain on the court file.
Catchwords: CONTEMPT: Contumacious contempt - disobedience of orders made by the court for more than three years - financial gain - sentencing options and principles - indemnity costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998Cases Cited: Burwood Council v Ruan [2008] NSWLEC 167
Commissioner for Fair Trading v Oliver [2004] NSWSC 722
Council of the City of Sydney v Mae [2009] NSWLEC 84
Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79
Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; (2006) 153 LGERA 126
Environment Protection Authority v White (1996) 92 LGERA 264
Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104
Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132
Hunters Hill Council v Hakim [2010] NSWLEC 62
Jeray v Blue Mountains City Council [2011] NSWLEC 28
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20
Palerang Council v Banfield (No 2) [2012] NSWLEC 158
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309
Ronowska v Kus (No 2) [2012] NSWSC 817
Sydney City Council v Sydney Tools Supplies Pty Ltd & Daniel Bek (No 3) [2012] NSWLEC 27
Tweed Shire Council v Sikiric (No 2) [2012] NSWLEC 119
Wollongong City Council v Kilpatrick (No 2) [2012] NSWLEC 98
Wood v Staunton (No 5) (1996) 86 A Crim R 183Category: Sentence Parties: Council of the City of Sydney (Prosecutor)
Mr Garnet Mae (Defendant)Representation: Mr M Wright, barrister (Prosecutor)
Mr R Killalea, solicitor (Defendant)
Council of the City of Sydney (Prosecutor)
KTG Lawyers (Defendant)
File Number(s): 41032 of 2008
Judgment
Introduction
Garnet Mae has pleaded guilty to a charge of contempt of court for failing to obey orders made by me in these Class 4 proceedings on 2 June 2009 - [2009] NSWLEC 84.
The parties have agreed upon a Statement of Agreed Facts ("SAF" - Exhibit P1) to assist the court in its sentencing function, but both sides have relied as well on affidavit evidence. Mr Mae also gave oral evidence and tendered a pre-sentence report (Exhibit M1), and an associated psychological report (Exhibit M2).
The orders made by the court concern unauthorised works done at premises at 20 Belvoir Street Surry Hills, and the unauthorised use of the premises as a backpacker/boarding house facility. Both the works and the use were permissible with consent.
Mr Mae acquired the premises in April/May 2004 for approximately $600,000, but carried out significant structural alterations to them without consent. Complaints to Council commenced in September 2006, and Council issued notices and orders in early 2008, without effect. Mae also ignored an emergency order issued to him on 3 September 2008, requiring removal of an external two-room structure at the rear. That structure itself was part of the unauthorised building works, and had been severely damaged, and left in a dangerous condition, as the result of a fire in August 2008, in which a backpacker was injured.
The proceedings were commenced on 15 October 2008, and the summons was amended on 27 February 2009. Some of the very unusual circumstances leading up to the ex parte hearing on 1 June 2009 were detailed in pars [7]-[10] of my judgment. Those circumstances and the other factual matters addressed in the judgment need not be repeated.
Since that hearing the defendant has defied both the Council and the court, and family members and friends have protected him from pursuit.
However, the Council concedes that the contempt charged ceased on 8 August 2012 (Tp28, LL47-50).
The Orders
The declarations and orders made on 2 June 2009 (my par [52]) were entered on 4 June 2009, and served on Mae on 11 June 2009. As entered, they faithfully replicated the relevant paragraph of my judgment, and were in the following terms:
"1. A declaration that the Respondent failed to comply with the terms of an Order dated 2 September 2008 and served on the Respondent by the Applicant pursuant to Section 121B of the EPA Act ("the Section 121B Order").
2. A declaration that the Respondent is unlawfully using (or, in the alternative, has been unlawfully using) the premises situated at and known as 20 Belvoir Street, Surry Hills ("the Premises") for the purposes of a "boarding house" ("the said Purpose") in contravention of the South Sydney LEP 1998 and s.76A(1) of the EPA Act.
3. A declaration that in contravention of s.76A(1) of the EPA Act the Respondent has unlawfully carried out the following building works on the Premises without first obtaining development consent ("the Unauthorised Building Works"), namely:
(a) the erection of a two room structure at the rear of the Premises;
(b) the erection of timber decking adjacent to the two room structure at the rear of the Premises;
(c) the modification of rooms within the Premises, namely:
I. the modification and alteration of the room immediately adjacent to the downstairs bathroom at the inside rear of the original terrace at the Premises by the removal and replacement of wall sheeting extending the size of the room to encroach on the original hallway space;
II. the modification and alteration of the room immediately at the top of the first set of stairs to the upper level by the erection and installation of wall sheeting to reduce the size of the original room and create a hallway from the top of the stairs to the adjacent upstairs bathroom, together with the creation of a false ceiling the width of this hallway creating a storage shelf within the room adjacent to the hallway;
III. the modification and alteration of the front room upstairs within the Premises by the addition and installation of wall sheeting to partition the original upstairs front room into two rooms; and
IV. the modification and alteration of the middle room upstairs within the Premises by the:
i. addition and installation of wall sheeting to reduce the size of the room to create a hallway providing a means of access to the adjacent room created by the works undertaken in (III) above; and
ii. the removal of a section of wall sheeting and the installation of a second doorframe and door access into the middle room.
4. An Order restraining the Respondent (by himself or through his servants, contractors and/or agents) from using or permitting the use of the Premises for the said Purpose until development consent for such use is granted pursuant to the EPA Act and such consent is operative.
5. An order pursuant to Section 124(2)(b) of the EPA Act that within 28 days of the making of this order the Respondent remove all Unauthorised Building Works at the Premises.
6. An order restraining the Respondent (by himself or through his servants, contractors and/or agents):
a) from advertising or holding out the Premises or any part of them as available for the said Purpose; and
b) from leasing or licensing the Premises or any part of them for the said Purpose without first obtaining a development consent specifically authorising the said Purpose.
7. The Respondent is ordered to pay the Applicant's costs. Such costs are to be paid on a party-party basis subject to leave being hereby granted to the Applicant to bring within twenty-one days a Notice of Motion seeking an order for its costs to be paid on a higher basis. The final amount is to be determined by agreement between the parties, or assessment according to law.
8. The Applicant shall have liberty to apply on 72 hours notice.
9. All the exhibits may be returned."
Events after the orders were made
On 5 June 2009, Mr Mae sent me a lengthy email. I will set out the first paragraph, which set the tone for the rest:
"I read with some amusement, mostly disdain, but an overall satisfaction of expectation your judgement handed down in the Land and Environment Court on 2nd June 2009 and am rather pleased I did not waste my time flying back to Australia to attend the hearing, thus sparing myself the suffering and indignation of sitting in court unnecessarily arguing my case and watching you make the same judgement regardless. I suspected from my limited experience of the land and environment court that you were really just an unnecessary step in local government enforcing its draconian and somewhat fascist policies. Your judgement, although eloquently worded, does nothing to dispel this belief. I shall be appealing all orders and costs you granted in the Supreme Court, where I hope to find a more impartial and less obsequious level of justice, however I will not be holding my breath. Perhaps if I can eventually have the matter heard before a jury I may be able to find some, until such a time keep on keeping on, knowing that you are a valuable member of the community and not just a pawn in a perfunctory vocation. My only regret in not being in attendance at the hearing is that I was not able to express to you personally my level of contempt for your process".
It is clear from that quotation that Mr Mae knew what I had said in my judgment, and so was clearly on notice, at least from 5 June 2009, of the court's orders, and their detail, even before they were served upon him.
In the succeeding paragraphs of his email the following comments were made:
- "I accept that I built the rooms without council approval, nor did I seek it".
- "The fact that there was a fire in the premises seems to be the one underlying factor that had this matter brought before the court. No one seems to care that the fire was an accident and I am being unfairly persecuted because of it".
- "I stand completely flawed (sic) by council's behaviour and equally your condonation of it."
- In respect of liberty to apply, "Im (sic) not sure what this means, but I suspect it gives Council further grounds to violate my privacy and rights. Good for you!".
- "Rest assured that I bare (sic) no grudges (to you judges) personally and that I write this email (whether or not you actually read it) as a way of expressing my annoyance at your decision and my severe disregard for your court and process. Im (sic) not sure if you can find me in contempt of court for this email but if you can I stand readily accused".
Mr Mae subsequently sent me a second personal email, recommending that I engage a particular accountant.
On 29 June 2009, Mr Mae filed a Notice of Motion ("NOM") "to suspend" the orders of 2 June until "completion of the appeal in the Supreme Court", and filed a brief affidavit in support. On 20 June, he had filed in the Supreme Court his Notice of Intention to Appeal against my decision.
The Stay Motion of 29 June came before me for hearing on 3 July 2009, and Mr Mae appeared for himself. That was the first time he had appeared, in person, before me. I advised him that I proposed to initiate no action against him, specifically in respect of his emails to me. He then said of the 5 June 2009 email (at T 3.7.09 p7): "I apologise if I offended you in that email". The prosecutor now relies on that email as evidence of his early defiance of the authority of the court.
The Council conceded that the court had the power to grant the stay, and said it was a matter entirely for the court's discretion, but it resisted the stay application, on the grounds that the premises continued to present a fire safety risk.
As the transcript reveals, I allowed Mr Mae every opportunity to argue some grounds upon which the stay could or should be granted. The only "ground" he stated in response was that he intended to obtain legal advice on his intended appeal - "I don't feel like I have received a fair treatment in the court process" (T p3), and "... there was an error in judgment made on that day ... I don't feel there is any safety issue" (T p5).
I pointed out that, as I had made clear in my judgment, he failed in the proceedings essentially because of the evidence contained in his own filed materials. He was reminded (T p4) that all his material was placed before the court, despite some of it being objectionable, and I reminded him (T p7) that at one stage he had been prepared to agree to orders (see [8] of my judgment). I assured him that I had dealt with "every aspect of the material that [he] filed". He responded "I guess you did that".
Instead of demolishing the building at the rear of the premises, as ordered, he had it rebuilt, and he admitted (at T p5) that he had "done things without Council's permission". He pointed out that the backpacker had been injured trying to put out a fire, and I made it clear to him that, while these proceedings were not simply about the fire, Council remained concerned about the "unregulated fire risk".
He repeated his admissions that he rebuilt the offending structure without approval, and had ignored the order to remove it.
He also said (at T p9) that the rent from those premises was his "only source of income", and re-emphasised his contention that the building was not appropriately regarded as a boarding house.
I indicated to him that I might be prepared to grant a stay if he could agree to some appropriate conditions with the Council. He (at T p10) suggested (1) that he would move into the fire affected room, (2) that he would widen the offending corridor, and (3) that he would let the Council in for an inspection to identify "the actual safety issues".
Again he agreed that he had "never got the Council's approval to do anything", but said that he was not aware that he needed a consent to alter the interior.
In reality, he had twice built the two rooms in the backyard of the premises without development consent.
His stay application was dismissed with costs, and he did not proceed with his appeal.
Council inspections on 15 July, 26 August, 27 August, and 3 September 2009 revealed that the unauthorised works remained in place, and the unauthorised use continued. Contempt proceedings were threatened if he did not comply with the orders by 30 October 2009, but advertising of the accommodation continued.
Apart from a small alteration to a wall in one bedroom no compliance was evident on 30 November 2009.
The contempt proceedings are commenced
The Council's NOM for contempt, the statement of charge, and a bundle containing Council's affidavit evidence in support of them, were filed on 16 February 2010. They were served personally on Mae on 18 February 2010.
The NOM, filed on 16 February 2010, sought the following orders:
"1. That the Respondent Garnet Mae be found guilty of contempt of Court for failing to comply with orders made by Justice Sheahan on 2 June 2009 in the circumstances set out in the Statement of Charge annexed hereto and marked "A";
2. That the Respondent be dealt with according to law for that contempt by way of fine, imprisonment, or both;
3. That the Respondent pay the costs of and incidental to this Motion on an indemnity basis; and
4. Such further or other orders as this honourable Court deems fit."
The appended Statement of Charge (Annexure "A" to the NOM) was in the following terms:
"THE APPLICANT CHARGES THAT -
1. On 2 June 2009, the Court (Justice Sheahan) made orders in the proceedings Council of the City of Sydney v Mae (No 41032 of 2008) including:
a. by Order 4, an order restraining the Respondent (by himself or through his servants, contractors and/or agents) from using or permitting the use of the Premises for the said Purpose until development consent for such use is granted pursuant to the Environmental Planning and Assessment Act 1979 and such consent is operative;
b. by Order 5, an order pursuant to s 124(2)(b) of the Environmental Planning and Assessment Act 1979 that within 28 days of the making of the order the Respondent remove all Unauthorised Building Works at the Premises;
c. by Order 6, and order restraining the Respondent (by himself or through his servants, contractors and/or agents):
a) from advertising or holding out the Premises or any part of them as available for the said Purpose; and
b) from leasing or licensing the Premises or any part of them for the said Purpose
without first obtaining a development consent specifically authorising the said Purpose;
where:
"the Premises" were defined as the premises situated at and known as 29 Belvoir St, Surry Hills,
"the said Purpose" was defined as the purposes of a "boarding house", and
"the Unauthorised Building Works" were defined as
(a) the erection of a two room structure at the rear of the Premises;
(b) the erection of timber decking adjacent to the two room structure at the rear of the Premises;
(c) the modification of rooms within the Premises, namely:
I. the modification and alteration of the room immediately adjacent to the downstairs bathroom at the inside rear of the original terrace at the Premises by the removal and replacement of wall sheeting extending the size of the room to encroach on the original hallway space;
II. the modification and alteration of the room immediately at the top of the first set of stairs to the upper level by the erection and installation of wall sheeting to reduce the size of the original room and create a hallway from the top of the stairs to the adjacent upstairs bathroom, together with the creation of a false ceiling the width of this hallway creating a storage shelf within the room adjacent to the hallway;
III. the modification and alteration of the front room upstairs within the Premises by the addition and installation of wall sheeting to partition the original upstairs front room into two rooms; and
IV. the modification and alteration of the middle room upstairs within the Premises by the:
i. addition and installation of wall sheeting to reduce the size of the room to create a hallway providing a means of access to the adjacent room created by the works undertaken in (III) above; and
ii. the removal of a section of wall sheeting and the installation of a second doorframe and door access into the middle room.
2. In breach of Order 4 the Respondent has, after 2 June 2009, used and permitted and continues to use and permit the use of the premises situated at and known as 20 Belvoir St, Surry Hills, for the purposes of a boarding house, notwithstanding that no development consent for such use has been granted pursuant to the Environmental Planning and Assessment Act 1979.
Particulars
The premises are used for the purposes of a boarding house by reason of the following matters:
(i) The premises are occupied by up to nine persons, notwithstanding that they contain only two bathrooms and one kitchen and are rated as ordinary residential.
(ii) The Respondent does not reside at the premises.
(iii) Rooms are advertised for letting individually.
(iv) Rooms are let pursuant to written agreements.
(v) Occupants pay rents and provide bonds in return for being entitled to reside at the premises.
(vi) Occupants use the premises as their principal place of residence rather than as overnight accommodation.
(vii) The term of occupation pursuant to the written agreements referred to above is relatively short, being 12 weeks.
(viii) Shared facilities, such as bathrooms and a kitchen, are available for use by occupants.
(ix) Services such as wireless internet, cable television and electricity are provided to occupants.
(x) Occupants are individuals and not related.
3. In breach of Order 5 the Respondent has failed to remove all the Unauthorised Building Works, as defined in paragraph 1 above, within 28 days of the making of the said order, or at all.
4. In breach of Order 6(a) the Respondent did, on each of 29 October 2009, 7 November 2009, 11 November 2009 and 10 February 2010, advertise and hold out the premises situated at and known as 20 Belvoir St, Surry Hills, or part of them, as available for the purpose of a boarding house, notwithstanding that no development consent specifically authorising that purpose has been granted pursuant to the Environmental Planning and Assessment Act 1979.
Particulars
(i) Advertisement to rent one fully furnished room available 31 October 2009 at 20 Belvoir St, Surry Hills, appearing on the internet site on 29 October 2009.
(ii) Advertisement to rent one fully furnished room available from 9 November 2009 at 20 Belvoir St, Surry Hills, appearing on the internet site on 7 November 2009.
(iii) Advertisement to rent one fully furnished room available 11 November 2009 at 20 Belvoir St, Surry Hills, appearing on the internet site on 11 November 2009.
(iv) Advertisement to rent a small furnished room available 11 February 2010 at 20 Belvoir St, Surry Hills, appearing on the internet site on 10 February 2010.
5. In breach of Order 6(b) the Respondent did, on 14 July 2009 and again on 3 November 2009, lease or license the premises situated at and know as 20 Belvoir St, Surry Hills, or part of them, for the purpose of a boarding house, notwithstanding that no development consent specifically authorising that purpose has been granted pursuant to the Environmental Planning and Assessment Act 1979.
Particulars
(i) Residential Tenancy Agreement dated 14 July 2009 naming the Respondent as Landlord and Sarah Davies, Hakan Safak, Steven Cairns, Joseph Purtle, Joshua Johnson, Anucha Koonmee, Jordan Sell and Jean Baptiste Capdebosqa as Tenants.
(ii) Residential Tenancy Agreement dated 3 November 2009 naming the Respondent as Landlord and Sarah Davies, Hakan Safak, Steven Cairns, Joseph Purtle, Anucha Koonmee, Jordan Sell Jean Baptiste Capdebosqa, Agathe Omnes and Emily Poole as Tenants.
6. By reason of the matters referred to above, the Respondent disobeyed orders 4, 5 and 6 of the Court made on 2 June 2009 and thereby committed contempt of the Court."
Pain J made directions (in Mae's absence) on 25 February 2010 that he appear before me, in response to the contempt charge, on 5 March 2010. Her Honour directed that the order be served personally on the respondent at or before 5pm on Monday 1 March 2010, and on that date I made an order for substituted service, to be effected by email by 6.30pm that day. Personal service attempts on 1 March were unsuccessful, but the email was sent, and warned him that a warrant might be issued for his arrest.
When Mae failed to appear on 5 March 2010, I issued an arrest warrant requiring him to be brought to court at 2.30pm on 12 March 2010. That warrant specified all known potential addresses where Mae might be located, namely 3/493 Bronte Road, Bronte; 20 Belvoir Street, Surry Hills; 3 George Street, Redfern; and 47 Blues Point Road, McMahons Point.
On 10 March 2010, Council filed comprehensive written submissions detailing how Mae was in breach of the various orders I had made on 2 June 2009.
On 12 March 2010, the Sheriff's Officer reported that he was unable to locate Mae. I was reluctant to deal with the contempt motion in his absence, having not had the opportunity to explain to him the seriousness of his position, so I issued a general warrant to bring him before the court as soon as the Sheriff could arrest him. Council emailed a copy of the warrant to Mae later that day.
Despite frequent reports to Council of sightings of Mae, at or near the subject premises, and voicemail contact with him on or about 10 and 12 May 2010, the Sheriff's search for him was unsuccessful until 6 June 2012. However, in that period, he made occasional telephone and email (but no face-to-face) contact with Council regarding some works he claimed he had done at the premises, consistent with Council's wishes and the court's orders. He was advised on several occasions that it was in his interest to attend court to deal with the charge. Council remained concerned particularly about the unauthorised use of the premises as a boarding house.
During a Council inspection on 17 May 2010, it could be seen that a substantial part of the unauthorised works have been removed from the premises (SAF par 34), but the unauthorised use continued, and further rectification works were required. Council emailed Mae on 18 May advising him of the outcomes of that inspection, and pointing out that the contempt proceedings remained on foot.
He did not respond to several communications, and failed to appear in court when Council re-listed the matter for directions on 27 July 2010. Council had emailed him to so advise, and it read various affidavits regarding the above events. Several emails and photographs were included among that evidence, as were reports from licensed commercial agents.
The Defendant is made bankrupt and arrested
Execution of the warrant having proven to be impossible, and Mae's advertising programme having continued (SAF pars 39-48), Council elected to pursue bankruptcy proceedings, in respect of the costs outstanding under the order I made against Mae on 2 June 2009.
Bankruptcy does not interfere with pursuit by Council or this court of the contempt proceedings.
Mae continued to avoid contact with the Council, and to advertise his premises. He ignored the bankruptcy notice served on 19 October 2011.
Giles Geoffrey Woodgate was appointed trustee of Mr Mae's bankrupt estate, effective 15 March 2012. Mr Woodgate's clerk, Mr Baudzus, has found him "somewhat deceptive and difficult to deal with" (Baudzus affidavit, fol 22).
Twice in May 2012, he tried to leave the country, and was intercepted by the Federal Police.
After being interviewed by the trustee's representative on 1 June 2012, Mae contacted Council to arrange an inspection of the premises. He told Council's Mr Jones (Jones affidavit, par 6): "Well I just thought that Council would give up and leave me alone".
As at 6 June 2012, and again on 14 June 2012, the use of the premises as a boarding house continued, and they remained as they had been on 17 May 2010.
On 6 June 2012, during Council's inspection, the Sheriff arrested Mae, and brought him before the court. I granted bail, and he subsequently appeared again on 7, 14, 27, and 29 June 2012. On and since 14 June, he has been represented by Mr Richard Killalea.
On 29 June, he pleaded guilty to the charge, but his solicitor expressed reservations about Council's intention to update its evidence in support. In the event, Mr Killalea raised no objections to Council's recently filed affidavit evidence at yesterday's sentencing hearing (Tp11, LL43-44).
Paragraphs 69 and 70 of the SAF state:
"69. At all relevant times (being the period 15 October 2008 to date), the use of the premises as a boarding house has and remains a use permissible with consent. No development application has been submitted by the Respondent to Council applying for permission to use the premises as a boarding house.
70. Despite his bankruptcy on 15 March 2012, the Respondent has and continued to use the premises as a boarding house up to and including 8 August, 2012."
The contemnor and his case on sentence
Mae is 40 years old, and presently unmarried. He is a passionate film producer/writer/director, operating as a sole trader, with no employees, under a registered business name, Rayon Productions. He says he loses money on his film activities and has relied totally on rents received from leasing out space in the subject premises (see[67](2) below). Pursuant to his bankruptcy, he has evicted all former tenants, and has now leased the premises as a single residence for one year at a rental of $1200 per week.
His tax position, regarding his rental income and his losses on film making, may yet compromise his attempts to have his bankruptcy annulled (Tpp15-18). However, the evidence suggests that, subject to any liability to the ATO, he will have, on annulment, remaining equity of about $300,000 in the subject premises (Baudzus affidavit, fol 30), and a net surplus of rental income over mortgage repayments of about $470 per week. He is in the process of paying off the debts proven in his bankruptcy by borrowing money from family and friends, money he has committed to repay, and, once the title to the premises is returned to him, he will seek to renegotiate his mortgage with the NAB.
In the past he has been sentenced to good behaviour bonds for dishonesty offences. The latest Probation and Parole Service ("PPS") Pre Sentence Report (Exhibit M1), dated 7 August 2012, says he "now accepts his responsibility for his actions". He is well-educated, intelligent, and has been described as "sophisticated". He is noted to be of sober habits, and he was cooperative in the PPS process. He has been assessed as unlikely to require or benefit from PPS supervision, and as suitable for a Community Service Order.
The report of the psychologist to whom Mr Killalea referred him (Terry Smith - Exhibit M2) noted some sadness, stress and grief in his past, with which he has coped by spiritual activities, shared with his mother. Smith assessed him as having a tendency towards delusional thinking, especially when confronted by rules or people preventing him from doing anything he considers to be his right, and sees as not harmful to others. Smith considers that he is not likely to re-offend, but records (p5) comments made by Mae, including "I push the limits in a creative way", and "the Council used the law to dominate and crush me". In his oral evidence (Tp21, L13), Mae acknowledged that he had been "vehemently self-righteous".
In both his affidavit sworn 7 August, and in his oral evidence (Tpp19-21), some contrition was expressed. In par 5 of the affidavit he said:
"I apologise to the Court for my contempt and to the Court and the Council of the City of Sydney for the inconvenience caused by my intransigent attitude in respect of the boarding house issue and the unauthorised works."
During the hearing, he conceded in writing (Exhibit M3) that an order for indemnity costs "would not be inappropriate", and provided a written promise to pay Council's costs as agreed or assessed, in equal monthly instalments beginning 60 days after the premises are re-vested in him "both in law and equity".
The Law of Contempt
Contempt proceedings are realistically seen as criminal in nature, and the prosecutor must prove its case against the defendant beyond reasonable doubt. Elements of financial gain and environmental harm may be germane, but contempt proceedings serve the dual purpose of, on the one hand, securing compliance with the law and with decisions of the courts, and, on the other, punishing for their breach, as a vindication of the court's authority.
As I observed in Hunters Hill Council v Hakim [2010] NSWLEC 62 (at [49]-[50] - emphasis now added):
"49 The laws governing development control serve an acknowledged and legitimate public purpose. The actions of Councils in restricting development are often not appreciated, but compliance is not optional, no matter what advice one receives, nor how much one likes or needs an offending structure.
50 When restrictive attitudes find their way into court orders, the courts will not hesitate to act firmly to enforce "scrupulous obedience" of them, and so protect the courts' integrity in upholding the law and its valid application...".
The guiding principles to apply are set out clearly by Biscoe J in Burwood Council v Ruan [2008] NSWLEC 167, but see also their application by Lloyd J in Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; (2006) 153 LGERA 126; Biscoe J in Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20; Craig J in Jeray v Blue Mountains City Council [2011] NSWLEC 28; Pepper J in Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79, and in Palerang Council v Banfield (No 2) [2012] NSWLEC 158; Pain J in Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104, and (No 6) [2011] NSWLEC 132; and myself in Sydney City Council v Sydney Tools Supplies Pty Ltd & Daniel Bek (No 3) [2012] NSWLEC 27, Wollongong City Council v Kilpatrick (No 2) [2012] NSWLEC 98, and Tweed Shire Council v Sikiric (No 2) [2012] NSWLEC 119. See also Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, and Ronowska v Kus (No 2) [2012] NSWSC 817 ("Ronowska").
Normal sentencing principles and considerations apply, so that the usual "instinctive synthesis" of objective seriousness of the offence and subjective factors of the offender must be undertaken. See Markarian v R [2005] HCA 25; (2005) 228 CLR 357, and Crimes (Sentencing Procedure) Act 1999 ('the CSP Act') ss 3A and 21A.
There should be elements of both general and specific deterrence in the sentence imposed, but the court must first establish the relevant level of culpability, and punishment should be "emphatic": Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 ("Pelechowski"), per Kirby J (at [149]).
Some of the provisions in the CSP Act mirror the landmark listing of relevant considerations by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183, at 185, namely:
"a. The seriousness of the contempt proved;
b. Whether the contemnor was aware of the consequences to himself of what he did;
c. The actual consequences of the contempt on the relevant trial or inquiry;
d. Whether the contempt was committed in the context of serious crime;
e. The reason for the contempt;
f. Whether the contemnor has received any benefit by indicating an intention to give evidence;
g. Whether there has been any apology or public expression of contrition;
h. The character and antecedents of the contemnor;
i. General and personal deterrence; and
j. Denunciation of the contempt."
All breaches of any court's orders are serious, even if they can be characterised as "technical", but deliberate defiance of them, and especially failure to honour undertakings to the court to comply with them, normally elevates the defendant's conduct from "wilful" to "contumacious" contempt, in the sense of the meaning given to that term in Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309.
Kirby P said in that case (at 314 f) that intentional disobedience does not always involve "a conscious defiance of the authority of the court", which is "the essence" of a "contumacious" contempt, because it is "aimed at the integrity of the courts and designed to degrade the administration of justice", as distinct from disobedience which simply interferes with property rights manifested by a court order.
The situation in the present case is not unusual, insofar as the person against whom the court makes orders initially objects to them and takes steps to appeal, then decides not to proceed with the appeal, and, ultimately, complies with the orders, under the threat of further trouble, usually including punishment for contempt of court.
The difficult task of fashioning the "right" combination of penalties and other orders in purely criminal cases is well analysed in leading authorities, such as R v Rahme (1989) 43 A Crim R 81, on which I relied in Environment Protection Authority v Pal [2009] NSWLEC 35 ("Pal").
Specifically on questions of penalising contempt, the authorities all have useful things to say, but it is clear that each case turns on its own particular facts. Certainly terms of imprisonment, suspended sentences, good behaviour bonds, community service orders, substantial fines, daily penalties, and indemnity costs orders all have a place in sentencing for contempt. (See Pembroke J's discussion in Ronowska). Prior to their abolition, sentences of periodic detention were often imposed - see, eg. Commissioner for Fair Trading v Oliver [2004] NSWSC 722.
Submissions
The Council has submitted that Mae's contempt is of the most serious kind - contumacious, defiant, deliberate, flagrant, and sustained - and should lead to a custodial sentence, with or without a fine, plus an order for Council's legal and investigation costs to be paid on an indemnity basis, in order to serve the need for both general and specific deterrence (see Pelechowski, and Tp23).
Mr Killalea specifically conceded (Tp29, L8-9): "I can't cavil with my friend's submission that it's the most serious contempt".
Under s 5 of the CSP Act, the court must not impose a sentence of imprisonment unless it concludes, after a full consideration of all punishment options, that no alternative penalty is appropriate.
Mr Wright drew attention to some aggravating factors disclosed by the evidence:
(1) (Tp25, Ll12-14) "he has gone out of his way to attempt to avoid the consequences of his conduct and to go to extraordinary lengths in attempts to leave the country, for example".
(2) Mae's non-compliance with the orders was motivated by, and led to, substantial financial gain (rents of $1800 per week until May 2010, and $1350 thereafter - Tpp12-13).
(3) (Tp26, LL5-12) "There are in my submission a number of aggravating circumstances in the matter, including the conduct surrounding the reaction of the defendant to the judgment, the persistent avoidance of compliance, the need to issue a warrant for arrest and to pursue it over a period of years. In that period the fact that the defendant, notwithstanding being aware of the orders, having disregarded them, having avoided the council and avoided the sheriff, continued to advertise the premises as a boarding house and continued to receive income from it throughout the period."
(4) Mae admitted (Tp21-23) that he acted in 2009 contrary to advice he obtained.
In answering possible mitigating features, he submitted that Mae's plea of guilty was entered "extremely late" (only on 29 June 2012). He also submitted (Tp24, LL34-40):
"Mr Mae's bankruptcy, if this is going to be an important as part of a matter of mitigation, in my respectful submission, is not a matter that would in any way mitigate the seriousness of his conduct simply because his bankruptcy is directly part of his breach of these orders. It has arisen because he has brought these consequences upon himself and the Council was put in the position where it had to pursue those proceedings and have this trustee appointed to recover the not insubstantial costs of the original class 4 proceedings."
Mr Wright submits that the court should attach little weight to Smith's report as favourable to Mae. Smith records various assertions of innocence, denials of wrong doing, and criticism of Council (Tp25), during his two sessions with Mae, as late as 5 and 19 July 2012.
However, Mr Killalea relies heavily on the report.
Once brought before the court last June, Mae "contemplated" his actions very seriously following his sessions with Smith and his taking advice from his solicitor.
Mr Killalea seized upon Smith's comments about Mae's "delusional belief about his rights in this matter" (Tp30, LL41-42) and his "delusional disorder or something tending towards it" (Tp31, L11).
In fairness to Mae, I will now quote two passages from Mr Killalea's submissions (Tp31, L40-p32, L5; and Tp33, L50-p34, L10):
"I submit that your Honour can take from that what Mr Smith is effectively saying is that this man suffers from a condition of having delusional beliefs, that that condition is not treatable by counselling, it's not treatable by medication, but what it does react to is the sort of action that this Court is contemplating, and that is what we have seen.
Mr Mae has ultimately not so much come to his senses, but come to an appreciation of mainstream community values on account of his passage from this Court making an order from 2 June 2009, which he did not accord with until he was pressed by legal advice, he was pressed by psychological advice, psychological assessment and he was pressed of course because the consequences of his action came home to him fully in realising that he was, on account of his thought processes - that he now stood - he now stands to be both heavily fined and stands to be imprisoned. And what comes from Mr Terry Smith's report, I submit, is that enough adversity is now threatened upon him that his risk of recidivism is very, very low."
...
"... with respect, on Mr Smith's report, going to gaol is not going to effect anything more than has been effected to date. He's now been made fully aware of the nature of his psychological condition. He's been made fully aware of what is the correct legal position in relation to what he's done. He has come to an awareness on account of both of those matters, the legal advice and the psychological assessment, the process thereof, become aware that what he did was wrong. With respect, he doesn't need in respect of himself anything further to bring him to his senses and to bring him to a commitment, as he's expressed, in terms of his apology for what's happened, his acknowledge of the wrong - he doesn't need anything more to bring about that condition. He's already there."
He submits that Mae has already suffered the costs of the substantive proceedings, and now of the bankruptcy, and has purged his contempt. As Smith concludes his report (p8): "The established and long term behavioural patterns of Mr Mae are almost invariably prosocial and these are not expected to change".
Mr Wright responded to those submissions in these terms (Tp39, LL34-42):
"Whilst even with the expression of contrition your Honour might accept that you have before you from Mr Mae, his evidence on oath, an understanding of his wrongdoing. That does not mean that the serious contempt committed to date should not be the subject of severe punishment. It is simply not a proper submission to put with respect in relation to his sentence that the late recognition, acknowledged in any event by a plea of guilty, coupled with some form of insight as to your conduct, means that you should not be punished. It simply means that your Honour might take into account that as one matter in assessing what the appropriate punishment is."
and he further submits (Tp39, L47-p40, L3) that Smith's conclusion:
"...does not coincide with the oral evidence that Mr Mae gave to you this morning, that, as a consequence of this consultation and the advices received, that he does understand the nature of his actions. So it is with respect of little assistance to your Honour to have a person in Mr Smith's position suggesting there is something that tends towards a diagnosis. It really does not have any weight at all in my submission and does not assist your Honour in determining an appropriate penalty."
Consideration
Clearly this contempt is contumacious, and deserving of serious punishment.
Had Mae faced up to the charge earlier there may have been scope for a suspended sentence and the inclusion of daily penalties to ensure that his contempt was purged.
His contemptuous behaviour commenced within 3 days of the orders being published, and continued apace for more than 3 years. He put overseas travel and his passion for filmmaking ahead of submitting to the court's jurisdiction, and systematically avoided Council officers and the Sheriff (Tp22, LL21-28).
He would now have the court believe that, after the sentencing hearing was fixed for trial, and he consulted his solicitor and a psychologist, he suddenly and completely "saw the error of his ways", and ceased his breaches.
I agree with Mr Wright (Tp27, LL28-39) that a fine would not be a sufficient penalty, even though Mae has assets sufficient to pay a substantial one.
There are strong arguments in favour of imprisonment, but I remain unconvinced that it is appropriate in this case.
Certainly he should fully indemnify Council for all the expense to which he put it. As I indicated (at par [50] of my earlier judgment), there was a case to be made for an indemnity costs order on the substantive matter, but Council elected not to pursue one.
The court hopes that the defendant can keep his written costs promise, but, in the end, that will depend on the outcome of his bankruptcy, and his intended application to his bank.
Mae is obviously intelligent and talented, and, rather than locking those gifts up it seems preferable for the court to put them to good use, for the benefit of the community to whose interests he has done so much mischief by his behaviour in this matter.
Accordingly, I have concluded that the defendant should be sentenced, subject to discount, to the maximum period of community service, and should also pay a heavy fine, and costs and investigation expenses on a indemnity basis. See Pal, Environment Protection Authority v White (1996) 92 LGERA 264, and, Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219.
Although entered very late, and coming after three years of defiance, Mae's plea of guilty had some utility value, and I will apply a discount of 10% to my proposed sentence of 500hrs of Community Service, and to a fine of $60,000.
Conclusion
Accordingly the orders of the court are:
(1) The defendant Garnet Alexander Mae is convicted on the charge of contempt detailed in the Statement of Charge filed on 16 February 2010.
(2) The defendant is sentenced to perform 450 hours of community service works and ordered to pay a fine of $54,000.
(3) The defendant is further ordered to pay the Council's just and reasonable legal costs and disbursements, including investigation expenses, on an indemnity basis, as agreed or assessed. Those costs and expenses are to be paid in twelve equal monthly instalments, commencing 60 days after the premises know as 20 Belvoir Street, Surry Hills are revested in the defendant.
(4) The defendant is to report, within 7 days of these orders to the City District Office of the Probation and Parole Service to conclude arrangements for his community service in accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 and the undertaking he has already signed pursuant to s 86(5) of that Act.
(5) Insofar as it may be required I revoke the warrant I issued on 12 March 2010 for the sheriff to arrest the defendant, and I release the defendant from the conditions attached, at my direction, to the amended Bail Undertaking entered by the defendant on 27 June 2012.
(6) Exhibits other than Exhibit M2 are to remain on the court file.
Decision last updated: 10 August 2012
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