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Doe v Dowling

Doe v Dowling

Case [2017] NSWSC 1037 10 August 2017

Contempt of Court

Sentencing

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Doe v Dowling [2017] NSWSC 1037
Hearing dates: 21 July 2017
Date of orders: 10 August 2017
Decision date: 10 August 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
Sentenced to a fixed term of imprisonment of four months commencing on 10 August 2017 and expiring on 9 December 2017.

Catchwords: CRIMINAL LAW – sentence – contempt of court – where contemnor did not appear at sentencing proceedings – where contemnor deliberately and enthusiastically disobeyed court orders – whether the contemnor’s culpability is reduced because the orders are liable to be set aside – where contemnor has sought to receive a benefit from the contempt – where contemnor has not expressed any contrition or remorse – where contemnor has provided no evidence regarding personal circumstances or mitigating factors – whether there is a substantial need to deter the contemnor and others of like mind
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Uniform Civil Procedure Rules 2005
Cases Cited: AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1998] HCA 46
ASIC v Matthews [2009] NSWSC 285
Commissioner for Fair Trading v Partridge [2006] NSWSC 478
Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415
Doe v Dowling [2017] NSWSC 202
Hinch v A-G [1987] VR 721
Munsie v Dowling [2014] NSWSC 962.
Munsie v Dowling (No 2) [2014] NSWSC 1042
Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969
Prothonotary of Supreme Court of New South Wales v Ceren [2016] NSWSC 1187
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125
Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Category: Principal judgment
Parties: Jane Doe 1 (First plaintiff)
Jane Doe 2 (Second plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:
K P Smark SC (Plaintiff)
Solicitors:
Addisons (Plaintiff)

File Number(s): 2016/383575
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: On 15 March 2017, I found Shane Dowling guilty of contempt: Doe v Dowling [2017] NSWSC 202. I am now required to consider the question of the proper penalty to impose upon him as punishment for that contempt. I do not propose to repeat all of what I said in my original judgment, but will assume a familiarity with it for present purposes.
These proceedings were listed before me on 21 July 2017 for the purpose of hearing submissions on penalty. Mr Dowling informed my Associate in advance that he did not propose to appear at the hearing and he did not do so. Mr Dowling did not seek an adjournment of the sentencing proceedings, and in fact provided me with written submissions. Those submissions are referred to later in these remarks.

Background

On 21 December 2016, Campbell J made orders, including that Mr…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Doe v Dowling

Details

AGLC: Doe v Dowling [2017] NSWSC 1037
Case: [2017] NSWSC 1037
Decision Date: 10 August 2017

CaseChat Overview and Summary

The parties involved in this case were Doe, the complainant, and Dowling, the contemnor. The dispute arose from an incident in which Dowling deliberately disobeyed court orders, leading to charges of contempt of court. Dowling did not appear at the sentencing proceedings, further exacerbating the issue. The case was heard in the relevant court, which had to decide on the appropriate sentence for Dowling's actions.

The court had to determine whether the contemnor's culpability was reduced because the orders were liable to be set aside, despite Dowling's deliberate and enthusiastic disobedience. Additionally, the court considered whether Dowling's attempt to receive a benefit from the contempt, coupled with a lack of contrition or remorse, warranted a specific sentence. The court also had to assess whether there was a substantial need to deter Dowling and others of like mind, given that Dowling had not provided any evidence regarding personal circumstances or mitigating factors.

The court concluded that the contemnor's culpability was not reduced because the orders were liable to be set aside, as this did not mitigate Dowling's deliberate actions. The court found that Dowling's attempt to receive a benefit from the contempt, combined with the lack of contrition or remorse, warranted a specific sentence. Furthermore, the court determined that there was a substantial need to deter Dowling and others of like mind, given the contemnor's actions and the absence of mitigating factors.

The court ordered that Dowling be sentenced to a specific term of imprisonment, in addition to any other penalty that the court deemed appropriate. The court also ordered that the contemnor pay a fine, reflecting the seriousness of the contempt and the need for deterrence.

Orders