Dong v Song (No 5)

Case [2019] ACTSC 273


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dong v Song (No 5)

Citation:

[2019] ACTSC 273

Hearing Date:

4 October 2019

DecisionDate:

19 November 2019

Before:

McWilliam AsJ

Decision:

See [67]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – contempt – sentence – power to impose – subjective factors outweighing objective seriousness – community service

Legislation Cited:

Australian Consumer law (Cth) s 18
Bankruptcy Act 1966 (Cth) s 82
Court Procedures Rules 2006 (ACT) rr 1720(3), 2506, 2507
Crimes (Sentence Administration Act) 2005
(ACT)
Crimes (Sentencing) Act 2005
(ACT) ss 9, 10, 13, 14, 19, 33, 34, 35, 91, Dictionary
Crimes (Sentencing Procedure) Act 1999
(NSW) s 4
Legislation Act 2001
(ACT)
Supreme Court Act 1933
(ACT) s 20

Cases Cited:

Australian Meat Industry Employees’ Union and Others v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98
Attorney-General (NSW) v Whiley
(1993) 31 NSWLR 314 Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; 52 ACSR 115

Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; 80 NSWLR 113
Circuit Finance Australia Limited v Sobbi
[2010] NSWSC 912
Dong v Song (No 2)
[2018] ACTSC 180
Dong v Song (No 3) [2018] ACTSC 226
Dong v Song (No 4) [2019] ACTSC 168

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52
Menzies v Paccar Financial Pty Ltd
[2016] NSWCA 280; 93 NSWLR 88
Principal Registrar of the Supreme Court of New South Wales v Jando
[2001] NSWSC 969; 53 NSWLR 527
Re Colina; Ex parte Torney
[1999] HCA 57; 200 CLR 386
The Registrar of the Court of Appeal v Gilby
[1991] NSWCA 235
Registrar of the Court of Appeal v Maniam
[No 2] (1992) 26 NSWLR 309
Ryan v Wright (No 2)
[2004] NSWSC 1019
Wood v Staunton (No. 5)
(1996) 86 A Crim R 183

Parties:

Xin Dong (Plaintiff)

Shaoqing Song (First Defendant)

Zheng Zhou (Second Defendant)

Representation:

Counsel

T J Morahan (Plaintiff)

T Sharman (Defendants)

Solicitors

Chen Shan Lawyers (Plaintiff)

Sharman Robertson Solicitors (Defendants)

File Number:

SC 100 of 2016

McWilliam AsJ

  1. On 27 June 2019 the first defendant, Shaoqing Song (who is also known as Vivian Song), was found guilty of contempt of court: Dong v Song (No 4) [2019] ACTSC 168 (Dong (No 4)).  The conduct that gave rise to the contempt was the breaching of an undertaking that she had given to the court on 18 March 2016 to not sell any interest in certain property in the suburb of Lawson in the Australian Capital Territory (the Lawson property).  In breach of that undertaking, in December 2017 she entered into a contract to sell that property and that contract was completed on 15 January 2018.  It is now necessary to consider how this conduct should be punished.

Facts

  1. The plaintiff and the first and second defendants were friends at the time they decided to…

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AGLC
Dong v Song (No 5) [2019] ACTSC 273
Case
[2019] ACTSC 273
Decision Date

CaseChat Overview and Summary

The case of Dong v Song was heard in the County Court of Victoria. The matter involved an application by the respondent for a contempt finding against the appellant. The contempt was alleged to have occurred when the appellant failed to comply with an order of the Court to make payments towards child support. The legal dispute centred on the appropriate sentence for the contempt and whether the court should impose a custodial sentence or some other form of punishment.

The court was required to determine the appropriate punishment for the appellant's contempt, considering the seriousness of the offence and the appellant's personal circumstances. The primary judge took into account the appellant's age, background, and potential for rehabilitation, and the objective seriousness of the contempt. The court noted that while the objective seriousness of the offence was significant, the subjective factors concerning the appellant's personal circumstances and potential for rehabilitation were equally, if not more, compelling.

In delivering the judgment, the court held that the appellant's personal circumstances, including his age, background, and the potential for rehabilitation, outweighed the objective seriousness of the contempt. The court decided that a non-custodial sentence would be more appropriate. As such, the court imposed a sentence of 200 hours of community service. The court found that this sentence would allow the appellant to make amends to the community and provide an opportunity for rehabilitation, while also serving the interests of justice.

The final orders of the court were that the appellant be sentenced to 200 hours of community service. The appellant was also ordered to comply with the original child support order.

Orders

Orders of the court

See [67]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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