He v Sun

[2021] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

He v Sun [2021] NSWCA 95

Hearing dates:

26 March 2021

Date of orders:

20 May 2021

Decision date:

20 May 2021

Before:

Bell P at [1];
Gleeson JA at [60];
McCallum JA at [61]

Decision:

1.        Appeal dismissed with costs.

2.        Dissolve the stay of orders made by Ward CJ in Eq on 25 September 2020 in relation to charges 1–4 as referred to in judgment Sun v He (No 2) [2020] NSWSC 1298.

3.       Order that a warrant issue for the committal of the appellant, Xin He (also known as Ethan He), to a correctional centre            for a term of six weeks commencing on the date of his arrest.

4.      Order that the warrant be executed forthwith.

Catchwords:

CONTEMPT – criminal contempt – where appellant engaged in conduct found to amount to a contumacious disregard of Court orders – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge failed to consider possibility of suspending sentence for contempt – whether sentencing judge erred in failing to suspend the sentence – whether sentence was manifestly excessive.

SENTENCING – criminal contempt – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge erred in failing to suspend the sentence – power to suspend a sentence for criminal contempt in the Supreme Court’s civil jurisdiction – whether sentence was manifestly excessive.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 8, 9, 10, 10A, 11, 12

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) sch 1 [14]

Supreme Court Act 1970 (NSW) s 75A

Supreme Court Rules 1970 (NSW) pt 55 r 13

Cases Cited:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Securities and Investments Commission v Matthews (2009) 71 ACSR 279; [2009] NSWSC 285

Barlow v R (2008) 184 A Crim R 187; [2008] NSWCCA 96

Berryman v R [2017] NSWCCA 297

Brown v R [2006] NSWCCA 144

Cabezuela v R [2020] NSWCCA 107

Campbell v R [2018] NSWCCA 87

Cumberland Council v Khoury [2017] NSWLEC 14

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455

Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340

Fogg v R [2011] NSWCCA 1

Furia v R [2010] NSWCCA 326

Goodbun v R [2020] NSWCCA 77

Hayek v R [2010] NSWCCA 139

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Holloway v R [2011] NSWCCA 23

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Martinez v R [2020] NSWCCA 250

Matthews v ASIC [2009] NSWCA 155

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Mirus Australia Pty Ltd v Gage [2018] NSWSC 35

Moodie v R [2020] NSWCCA 160

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pattalis v R [2013] NSWCCA 171

Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495

R v Elemes [2000] NSWCCA 235

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

R v Zamagias [2002] NSWCCA 17

Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

Simmons v R [2020] NSWCCA 16

Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181

Stewart v R [2009] NSWCCA 152

Sun v He [2020] NSWSC 802

Tammer-Spence v R [2013] NSWCCA 297

Turner v R [2021] NSWCCA 5

Vandeventer v R [2013] NSWCCA 33

Vuni v R [2006] NSWCCA 171

Wany v DPP [2020] NSWCA 318

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Wilson v R (Cth) [2020] NSWCCA 211

Windle v R [2011] NSWCCA 277

Wood v Samuels (1974) 8 SASR 465

Texts Cited:

N Adams and B Baker, “Sentencing for Contempt of Court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017

Category:

Principal judgment

Parties:

Xin He (aka Ethan He) (Appellant)
Bo Sun (aka Michael Sun) (Respondent)

Representation:

Counsel:

T Edwards (Appellant)
M Pesman SC with T Bors (Respondent)

Solicitors:

Massey Bailey Solicitors & Consultants (Appellant)
Colin Biggers & Paisley (Respondent)

File Number(s):

2020/284202

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1298

Date of Decision:

25 September 2020

Before:

Ward CJ in Eq

File Number(s):

2019/71078

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Xin He (Mr He) was found to be in contempt of Court after engaging in certain charged conduct during the execution of a search order at his home in 2019. It was not in dispute that before Mr He permitted the search party to access his premises in accordance with the search order, he deliberately deleted a considerable amount of electronic material on various of his electronic devices which were said to contain evidence relevant to litigation between himself and the respondent, Mr Bo Sun.

The primary judge held that the contempt was of a criminal nature, comprising a deliberate defiance of the search order and an interference with the due administration of justice. After considering the objective seriousness of the offence and the relevant subjective circumstances of the case, the primary judge concluded that no sentence other than a custodial sentence was appropriate. Her Honour imposed a term of six weeks’ imprisonment, which she indicated was the least that would satisfy the need for general and specific deterrence, and the need to vindicate the contempts that had occurred.

On appeal, the principal issues were whether the primary judge erred by not considering whether the sentence should be suspended on terms, and whether the sentence was manifestly excessive.

The Court held (Bell P, Gleeson and McCallum JJA agreeing), dismissing the appeal with costs:

1. The primary judge did not err by failing to consider the possibility of suspending the sentence. The primary judge was clearly aware of the Court’s power to suspend any sentence imposed, but nevertheless formed the view, bearing in mind the objective seriousness of the offence and the subjective circumstances of the case, that no sentence other than a custodial sentence was appropriate for what was rightly described as contumacious conduct at the very serious end of the scale: [43]-[45] (Bell P); [60] (Gleeson JA); [69]-[71] (McCallum JA).

2. The sentence of six weeks’ imprisonment was not manifestly excessive. The appellant failed to establish that the sentence imposed was unreasonable or plainly unjust, or that there was some misapplication of principle such as to justify appellate intervention: [55]-[59] (Bell P); [60] (Gleeson JA); [72]-[73] (McCallum JA).

3. Discussion of principles relating to challenge to sentencing on grounds of manifest excess: [41]-[42] (Bell P); [60] (Gleeson JA).

4. The principles developed in criminal sentencing proceedings do not necessarily apply without qualification to the determination of a motion seeking to have a person punished for contempt in civil proceedings, although there is likely to be considerable overlap: [66] (McCallum JA).

Judgment

1. BELL P: On 26 June 2020, Ward CJ in Eq (the primary judge) made a declaration that the appellant, Mr Xin He (aka Mr Ethan He) (Mr He) was in contempt of Court by engaging in certain charged conduct during the execution on 22 November 2019 of a search order made on 21 November 2019 by Lindsay J (the Search Order): see Sun v He [2020] NSWSC 802 (the Contempt Judgment).

2. In the underlying proceedings, the respondent, Mr Bo Sun (aka Mr Michael Sun) (Mr Sun) alleged that he provided Mr He with sums totalling some $80,113,752.04 to invest on his behalf in Australia, and that approximately $20 million of that amount had been misappropriated by Mr He.

3. What emerged in the course of the filing of affidavit evidence in the underlying proceedings was a material discrepancy between the records put into evidence by each of Mr He and Mr Sun as to certain “WeChat” discussions between them. WeChat is a messaging, social media and payment system which is popular in China. A comparison between the respective versions of the disputed WeChat conversations over the relevant period indicated that, on Mr He’s version of various conversations, there were additional messages between the two parties. Both Mr Sun and Mr He suggested below that the other had doctored their records of the relevant WeChat conversations.

4. It was in this context that the Search Order was made on 21 November 2019 against Mr He. The Search Order relevantly identified the premises to be searched as Mr He’s home address in Warrawee, and also listed the things the subject of the search, which included any documents, records, screenshots and electronic data and metadata:

“…containing, relating to, used by, created by or in consequence of the transmission of, any communications between the Plaintiff and First Defendant [Mr He] by way of the ‘WeChat’ and/or ‘Whatsapp’ and/or any other communications applications and services between January 2016 and January 2019”.

5. The primary judge noted that while there was some dispute as to some aspects of what occurred during the execution of the Search Order, what was not disputed was that before Mr He permitted the search party to access his premises in Warrawee, he deliberately deleted a considerable amount of electronic material on various of his electronic devices, including his Huawei Mate Pro 20 mobile telephone, an Apple iMac computer and an Apple iPad Pro. A detailed chronology of events on execution of the Search Order is provided in the Contempt Judgment at [40]-[129].

6. The Statement of Charge accompanying the contempt motion contained four charges, as follows:

“Charge 1

1.      On 22 November 2019, the First Defendant intentionally destroyed electronic files and data relating to those files in his possession, power, custody and/or control:

(a)   in breach of Order 26 of the Orders made by Justice Lindsay on 21 November 2019;

(b)   for a purpose, which was a material purpose, of preventing some or all of those files and data being accessed pursuant to an order of this Court and available for use as evidence in these proceedings; and

(c)   further or in the alternative, in circumstances where that destruction had an inherent tendency to interfere with the administration of justice.

Particulars

1.      Order 26 of the Orders made by Justice Lindsay on 21 November 2019 (Search Order).

2.      On 22 November 2019:

(a)   At about 10:24am the Search Order together [sic] the Plaintiff’s application (Notice of Motion filed 21 November 2010 [sic]) and evidence in support was personally served on the First Defendant at [the Warrawee premises] by Stuart Blaxell, the Independent Solicitor authorised by the Court to supervise the undertaking of the Search Order.

(b)   Shortly after 10:24am, the First Defendant was advised by the Independent Solicitor that:

(i)    he was required to allow the Independent Solicitor entry to the premises; and

(ii)   he must not disturb or destroy any document of [sic] thing covered by the Search Order.

(c)      At 10:32am, the First Defendant was again advised by the Independent Solicitor that he was obliged to [allow] his entry however the First Defendant refused entry to the Independent Solicitor.

(d)      At 11:00am (prior to entry of the Search Party), the First Defendant performed a factory re-set of a Huawei Mate Pro 20 (serial number 8UG021880000335) found within [the Warrawee premises] which had the effect of deleting all data from the device which was previously stored on the device.

(e)      Between 11:25am and 11:36am (prior to entry of the Search Party), the First Defendant deleted approximately 8GB of data, comprising of 548 files, on an Apple iMac desktop computer (Serial Number C02TD54LGGTL) in [the Warrawee premises].

(f)      At 11:45am, the First Defendant’s solicitor confirmed with the Independent Solicitor that he had advised the First Defendant of his obligations under the Search Order.

(g)      At 11:49am (prior to entry of the Search Party), the First Defendant performed a factory re-set of an Apple iPad Pro (serial number DMPY 412UKD6N) found within [the Warrawee premises] which had the effect of deleting all data from the device which was previously stored on the device.

(h)      At about 4:40pm (after access had been granted to the Search Party), the First Defendant performed a factory re-set of an Apple iPhone X (serial number G0NVNFVRJCL7) found within the house at [the Warrawee premises] in the presence of the Independent Computer Expert.

3.      The files, and any data relating to the access and use of those files referred to in particular 2(d), 2(e), 2(g) and 2(h) were potentially relevant to issues in these proceedings, including:

(a)   whether the First Defendant has deleted, modified, fabricated or otherwise altered the WeChat communications and spreadsheets that appear in the:

(i)    Affidavit of Xin He affirmed 10 May 2019; and

(ii)   Affidavit of Xin He affirmed 29 October 2019.

(b)      whether the Plaintiff has deleted, modified, fabricated or otherwise altered the WeChat communications and spreadsheets that appear in the affidavit of Bo Sun affirmed 26 July 2019.

Charge 2

4.      On 22 November 2019, the First Defendant intentionally failed to facilitate access to his ‘iCloud’ or other web-based storage services and e-mail accounts:

(a)   in breach of Order 9(d)-(e) of the Search Order.

(b)   for a purpose, which was a material purpose, of preventing some or all of the files and data held on his web-based storage services and e-mail accounts being accessed pursuant to an order of this Court and available for use as evidence in these proceedings; and

(c)   further or in the alternative, in circumstances where that failure to facilitate access to his ‘iCloud’ or other web-based storage services and e-mail account had an inherent tendency to interfere with the administration of justice.

Particulars

5.      Orders 9(d)-(e) of the Search Order.

6.      On 22 November 2019:

(a)   At about 10:24am the Search Order together the [sic] Plaintiff’s application and evidence in support was personally served on the First Defendant at [the Warrawee premises] by Stuart Blaxell, the Independent Solicitor authorised by the Court to supervise the undertaking of the Search Order.

(b)   At 11:45am, the First Defendant’s solicitor confirmed with the Independent Solicitor that he had advised the First Defendant of his obligations under the Search Order.

(c)   Between 5:05pm and 5:50pm, the First Defendant failed to give access to the following web-based storage services or e-mail accounts:

(i)     Microsoft Hotmail;

(ii)    Apple iCloud;

(iii)   Google Gmail; and

(iv)   Dropbox

(d)      The First Defendant prevented access to his web-based storage services and e- mail accounts by providing:

(i)    incorrect passwords, and

(ii)   preventing 2-factor authentication via his mobile phone by removing the SIM card on his mobile phone and refusing to provide the location of the SIM card’s whereabouts.

7.      The First Defendant’s web-based storage services and e-mail accounts (and the files and data contained therein) referred to in particular 6(c) were potentially relevant to issues in these proceedings, including:

(a)   whether the First Defendant has deleted, modified, fabricated or otherwise altered the WeChat communications and spreadsheets that appear in the:

(i)    Affidavit of Xin He affirmed 10 May 2019; and

(ii)   Affidavit of Xin He affirmed 29 October 2019.

(b)   whether the Plaintiff has deleted, modified, fabricated or otherwise altered the WeChat communications and spreadsheets that appear in the affidavit of Bo Sun affirmed 26 July 2019.

Charge 3

8.      On 22 November 2019, the First Defendant intentionally refused access to the Independent Solicitor for nearly three hours following service of the Orders made by Justice Lindsay on 21 November 2019:

(a)   in breach of Orders 8 and 14(b) of the Search Order;

(b)   for a purpose, which was a material purpose, of preventing the search party from access to [the Warrawee premises] to undertake the search order pursuant to an order of this Court;

(c)   for a purpose, which was a material purpose, of allowing him time to destroy certain of the listed things in the Search Order; and

(d)   further or in the alternative, in circumstances where the refusal of access had an inherent tendency to interfere with the administration of justice.

Particulars

9.        Orders 8 and 14(b) of the Search Order.

10.      On 22 November 2019:

(a)   At about 10:24am the Search Order together [sic] the Plaintiff’s application and evidence in support was personally served on the First Defendant at [the Warrawee premises] by Stuart Blaxell, the Independent Solicitor authorised by the Court to supervise the undertaking of the Search Order.

(b)   At 10:32am, the Independent Solicitor advised the First Defendant that he was obliged to permit him entry to [the Warrawee premises].

(c)   At 11:00am (prior to entry of the Search Party), the First Defendant performed a factory re-set of a Huawei Mate Pro 20 (serial number 8UG021880000335) found within [the Warrawee premises] which had the effect of deleting all data from the device which was previously stored on the device.

(d)   Between 11:25am and 11:36am (prior to entry of the Search Party), the First Defendant deleted approximately 8GB of data, comprising of 548 files, on an Apple iMac desktop computer (Serial Number C02TD54LGGTL) in [the Warrawee premises].

(e)   At 11:45am, the First Defendant’s solicitor confirmed with the Independent Solicitor that he had advised the First Defendant of his obligations under the Search Order.

(f)   At 11:49am (prior to entry of the Search Party), the First Defendant performed a factory re-set of an Apple iPad Pro (serial number DMPY 412UKD6N) found within [the Warrawee premises] which had the effect of deleting all data from the device which was previously stored on the device.

(g)   At around 1:20pm, the search party under the Search Order was permitted entry to [the Warrawee premises].

Charge 4

11.      On 22 November 2019, the First Defendant intentionally failed to disclose the whereabouts of electronic devices, including mobile telephones, and storage devices such as may contain such as may contain [sic] any documents, records, spreadsheets, screen shots, electronic data and metadata relating to, used by, created by or in consequence of the transmission of any communications between the Plaintiff and First Defendant by way of the ‘WeChat’ and/or ‘Whatsapp’ and/or any other communications applications and services between January 2016 and January 2019:

(a)   in breach of Order 9(c) of the Search Order.

(b)   or [sic] a purpose, which was a material purpose, of preventing some or all of the files and data held on his electronic devices and storage devices being accessed pursuant to an order of this Court and available for use as evidence in these proceedings; and

(c)   further or in the alternative, in circumstances where the failure to disclose the whereabouts of electronic devices, including mobile telephones, and storage devices [sic] an inherent tendency to interfere with the administration of justice.

Particulars

12.      Order 9(c) of the Search Order.

13.      On 22 November 2019:

(a)   At about 10:24am the Search Order together [sic] the Plaintiff’s application and evidence in support was personally served on the First Defendant at [the Warrawee premises] by Stuart Blaxell, the Independent Solicitor authorised by the Court to supervise the undertaking of the Search Order.

(b)   At 11:45am, the First Defendant’s solicitor confirmed with the Independent Solicitor that he had advised the First Defendant of his obligations under the Search Order.

(c)   During the undertaking of the Search Order and after the First Defendant had purported to gather up all of the electronic devices in the house:

(i)   the search party later located in the First Defendant’s home office:

(A)   an Apple iMac desktop computer (Serial Number C02TD54LGGTL), found to have had had [sic] approximately 8GB of data, comprising of 548 files, deleted from it prior to the entry of the search party;

(B)   an iPad Pro; and

(C)   a number of USB and memory cards and other data storage locations including [two] hard disk drives.

(ii)   the search party later located in the upstairs study:

(A)   an Apple iPhone X (serial number G0NVNFVRJCL7), which the First Defendant performed a factory re-set of in the presence of the Independent Computer Expert.”

7. At [216] of the Contempt Judgment, the primary judge concluded that she was satisfied beyond reasonable doubt that, at the relevant times, Mr He destroyed and/or tampered with documents, records, screenshots and/or electronic data and metadata containing, relating to, used by, created by or in consequence of the transmission of relevant communications; and/or tampered with devices that ‘may contain’ (or, indeed in the case of the Huawei Mate Pro 20 device and Apple iMac computer, had been accepted by Mr He or established by Ms Balit to contain) documents, records, screenshots and/or electronic data and metadata containing, relating to, used by, created by or in consequence of the transmission of relevant communications.

8. At [220] of the Contempt Judgment, her Honour noted that there was no dispute that the “contempt here alleged is criminal contempt, comprising deliberate defiance of the Search Order and interference with the due administration of justice”.

9. The primary judge held that each of the separate charges of contempt was proven beyond reasonable doubt: see Contempt Judgment at [272], [274], [279] and [283].

The sentencing judgment

10. In Sun v He (No 2) [2020] NSWSC 1298 at [85] (the Sentencing Judgment or SJ), the primary judge noted that the underlying rationale of sentencing for both civil and criminal contempt is to protect the effective administration of justice, referring to Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [97]; and Australian Securities and Investments Commission v Matthews (2009) 71 ACSR 279; [2009] NSWSC 285 at [26]-[27] (ASIC v Matthews). Her Honour noted those matters which are of primary relevance in the sentencing exercise as follows:

“…the seriousness of the contempts; the contemnor’s culpability; the reasons or motives for the contemptuous conduct; whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor’s personal circumstances; the need for specific and general deterrence; and, finally, the need for denunciation of contemptuous conduct.”

11. The primary judge noted at SJ [20] that this Court’s decision in Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 (Dowling) was to the effect that the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply with respect to proceedings for contempt in the civil jurisdiction of this Court (see Basten JA at [46], [57]-[58], with whom Meagher JA agreed at [139]). Her Honour pointed out that the significance of this for the purposes of Mr He’s sentencing was that the alternatives to imprisonment for which that Act provided, such as a community service order (s 8), a conditional release order (s 9), dismissal of the charges, if the Court is satisfied that it is inexpedient to inflict any punishment other than nominal punishment (s 10), conviction with no other penalty (s 10A) and a suspended sentence of imprisonment (s 11)), did not apply or were not available. [1] Her Honour recorded at SJ [20] that this was ultimately accepted on Mr He’s behalf. The primary judge also noted, however, at SJ [27], that there was a power to suspend a sentence of imprisonment or a fine or a combination of both under Pt 55 r 13 of the Supreme Court Rules 1970 (NSW).

    1. The reference to s 11 providing for a suspended sentence was, with respect, erroneous. Section 11 makes provision for the deferral of sentences. Section 12 of the Act, as explained at [38], provided for suspended sentences in certain circumstances but was repealed in 2018.

12. What was ultimately urged on the primary judge by Mr He’s counsel as an appropriate penalty was the imposition of a fine of some kind (which would be met by Mr He’s family) or “perhaps, simply the imposition of costs orders”: SJ [80]. It was not submitted that, if her Honour was to hold that a period of imprisonment was appropriate, she should nevertheless suspend any such sentence, whether on terms or not.

13. At SJ [90], the primary judge noted that, in relation to the seriousness of the contempts, she had reached the view that the contumacious conduct engaged in by Mr He fell into the “most serious class of case”, and that this was a matter that “militate[d] strongly towards the imposition of a custodial sentence”.

14. At SJ [92], the primary judge noted that the contempts committed by Mr He disclosed a “high degree of culpability”. Her Honour also noted that:

“…at the time of the contemptuous acts committed, Mr He was aware of the existence and effect of the Search Orders and yet… Mr He proceeded to engage in the systematic deletion of data and files over a number of hours (and did so not only while he was seeking and obtaining legal advice but also while he was taking steps to seek a variation of the Search Order and thus invoking the very processes of the Court that he was at the same time abusing). I consider that these considerations also militate towards the imposition of a custodial sentence”.

15. As to Mr He’s reasons or motives for the contemptuous conduct, her Honour noted (at SJ [94]) that Mr He’s actions were:

“…calculated to interfere with (and to frustrate) legitimate investigations into the electronic devices in his possession and, hence, had a clear tendency and were calculated to interfere with the administration of justice. Again, his conduct involved deliberate disobedience of specific orders of this Court during the pendency of litigation in which he was, and is, an active participant. To my mind, these considerations also militate towards the imposition of a custodial sentence.”

16. As to whether Mr He received, or sought to receive, a benefit or gain from the contempt, her Honour noted (at SJ [95]) that:

“…Mr He’s actions have, on any view, substantially frustrated the further conduct of this litigation and, at least to some extent, have made it now more difficult for Mr Sun to make good his claims against Mr He. In that way, while not a benefit or gain in the sense that one might usually think of it, I see that this factor also militates towards a more severe sentence.”

17. As to whether Mr He had expressed any genuine contrition, the primary judge noted at SJ [97]-[99] that:

“97    … I accept that Mr He has now proffered an apology to the Court for his actions and I do not place much significance on the fact that this apology was not made on oath or by affirmation and was not able to be tested in cross-examination.

98    Similarly, I also accept that Mr He now professes to accept that he behaved wrongly and, again, I do not place much significance on the fact that this has not been tested in cross-examination. However, it is not irrelevant to note that this seems to have been a very belated recognition of wrongdoing (since the pre-sentence report suggests that, at that stage, Mr He was still denying or resisting acceptance of wrongdoing).

99 As I have said, I consider the fact of Mr He’s apology as militating towards a reduction in sentence (although, again, the extent of Mr He’s contrition is hard to gauge, particularly having regard to the pre-sentence report) and this apology, and expression of contrition, has come most belatedly. As noted above, it is inexplicable to me that Mr He did not take steps to purge the contempt that was found to have been proved in relation to Charge 2 (i.e., the provision of an operative password) and, indeed, it was not until the sentence hearing that further passwords were provided (see T 5-6). As also noted (see at [51] above), the suggestion in oral submissions that the password(s) had already been provided (and that this had been the case when the hearing of the Contempt Motion took place) is inconsistent with the evidence that was given at the hearing of the Contempt Motion.”

18. The primary judge noted that she placed only limited significance on Mr He’s character in determining the sentence to be imposed: SJ [100]. As to Mr He’s antecedents and personal circumstances, the primary judge placed weight on the fact that Mr He had no criminal history and no history of anti-social behaviour, and also on the fact that he had been identified as low risk of re-offending and was a man of otherwise good character: SJ [101].

19. The primary judge placed “significant weight” on the fact that Mr He was a married man with two young children, and placed weight on the fact that he was the sole income provider for his family, and that his business may be affected by a custodial sentence: SJ [103]. Her Honour took into account the fact that the imposition of a custodial sentence would have a severe personal and financial impact upon Mr He and his family, as well as potentially substantially adversely impacting his business endeavours, which were matters that her Honour held militated towards leniency and a reduction in sentencing: SJ [103].

20. The primary judge also expressed the view that a fine would not be an appropriate or adequate sentence in this case, as her Honour considered that she would have little certainty that a fine would have the necessary punitive effect upon Mr He: SJ [108]-[109]. Her Honour also noted that, “on any view”, the imposition of a costs order alone would not be an adequate penalty: SJ [113].

21. Accordingly, her Honour noted that she was “satisfied that no sentence other than a custodial sentence is appropriate”, and that there was “no alternative in this case other than to impose a term of imprisonment”: SJ [114]. As to each of the charges, her Honour imposed the following sentences:

“116   In relation to charge 1 (which concerned the alleged deletion of electronic data), I consider that a six week custodial sentence should be imposed. This takes account of the particularly egregious and contumacious nature of the conduct to which this charge relates.

117    In relation to charge 2 (which concerned the alleged failure to provide all passwords), I consider that a two week custodial sentence should be imposed. This takes account that the conduct relating to this charge was, relatively, less egregious and contumacious.

118    In relation to charge 3 (which concerned the alleged refusal to allow access to the premises), for the same reasons as the sentence for charge 2, I consider that a two week custodial sentence should be imposed.

119    In relation to charge 4 (which concerned the alleged failure to disclose the location of devices), I consider that a six week custodial sentence should be imposed. Again, this is to take account of the particularly egregious and contumacious nature of the conduct to which this charge relates.

120    Having in mind the fact that each charge relates to conduct that is connected and, in one sense, forms part of a single circumstance of offending, I consider that the sentences should be served concurrently from the date of arrest.”

22. Her Honour continued (at SJ [121]) that:

“To my mind, having in mind the totality of the criminality, an aggregate term of six weeks imprisonment is the least that will satisfy the need for general and specific deterrence and the need to vindicate the contempts that have occurred, along with those other factors considered above, while taking into account the factors tending towards a reduction in sentence (and, particularly Mr He’s personal circumstances, along with the fact that he is a first-time offender and is otherwise of good character).” (emphasis added).

23. Her Honour had earlier noted that she had arrived at her conclusion “only after extensive reflection” and felt that there was “no alternative in this case other than to impose a term of imprisonment”: SJ [114].

Grounds of appeal

24. Mr He, for whom Mr Edwards appeared, appealed on the following grounds:

“1   That the Court did not consider suspending the sentence of imprisonment that was imposed.

2    That the sentence was manifestly excessive”.

25. In oral submissions, principal emphasis was placed on the first ground of appeal in recognition, no doubt, as to the considerable forensic challenges to be overcome when challenging a decision on the ground of manifest excess: see [41]–[42] below.

Submissions

Mr He

26. In written submissions, counsel for Mr He dealt with the two grounds of appeal together.

27. It was submitted that, in accordance with the principles as set out in Pattalis v R [2013] NSWCCA 171, in the circumstances of the case, imposing a sentence of full-time imprisonment was “plainly [u]njust”. Counsel for Mr He submitted that the primary judge did not discuss and apply the common law principle that a sentence of imprisonment should be used as a last resort, and that the primary judge erred by failing to consider whether the sentence should be suspended on terms.

28. Counsel for Mr He submitted that, when approaching the imposition of a sentence of imprisonment, there are three steps that a sentencing court should follow, in accordance with the sentencing process as enunciated by Howie J (with whom Hodgson JA and Levine J agreed) in R v Zamagias [2002] NSWCCA 17 (Zamagias); see also Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455. These steps are (1) to ask and answer whether there is an alternative to the imposition of a sentence of imprisonment; (2) to determine the term of the sentence having determined that there is no other appropriate penalty; and (3) once the term of the sentence of imprisonment has been determined, to consider whether an alternative to full-time imprisonment is available and should be utilised. Here it was contended that, although neither party had urged upon the primary judge the suspension of a custodial sentence on terms, her Honour’s failure to consider this possibility represented appellable error. A contrast was sought to be drawn between the primary judge’s detailed consideration as to whether or not a fine would have been an acceptable punishment and the absence of any similarly detailed analysis as to the appropriateness or otherwise of suspending a custodial sentence, which was ultimately considered appropriate.

29. Particular reliance was placed upon the decisions of the New South Wales Court of Criminal Appeal in Brown v R [2006] NSWCCA 144 (Brown) and Campbell v R [2018] NSWCCA 87 (Campbell), both of which involved sentencing pursuant to the Crimes (Sentencing Procedure) Act. In Brown, James J (with whom Hodgson JA and Hoeben J (as his Honour then was) agreed) considered that in the particular circumstances of the case, the sentencing judge should have considered whether the sentences he was about to impose should have been suspended. In Campbell, Hamill J (with whom Bathurst CJ and Schmidt J agreed) held that the sentencing judge had “erred in failing to consider an alternative to full-time custody”: at [52].

30. Counsel for Mr He submitted that a sentence of six weeks’ imprisonment would do little to reduce the appellant’s risk of re-offending and that “[i]ndeed, it will provide the appellant with exposure to the criminal milieu criminals that he would otherwise be unlikely to be exposed to”, and that the “dislocation from his family and community generally would not assist in his rehabilitation”.

31. Counsel for Mr He submitted that findings of the Court that militated against the imposition of a full-time custodial sentence included findings in relation to remorse, prior good character, Mr He’s personal and financial responsibility for his family and Mr He’s lower culpability relative to other cases of contemptuous conduct.

Mr Sun

32. Counsel for Mr Sun argued that, contrary to Mr He’s submission, the procedure set out in Zamagias was inapplicable to the present case, as such a staged process specifically related to a sentencing court imposing a sentence of imprisonment under, and having regard to, the provisions of the Crimes (Sentencing Procedure) Act. Counsel for Mr Sun pointed to the fact that all parties accepted, consistent with Dowling, that that Act had no application to the present case, and thus Mr He had provided no cogent basis for his contention that the primary judge should have adopted the Zamagias process generally, derived, as it was, from an analysis of the Crimes (Sentencing Procedure) Act.

33. Counsel for Mr Sun argued that even if the process in Zamagias were applicable, it did not require the primary judge expressly to articulate any considerations as to alternatives to imposing a full-time sentence as Mr He suggested. Further, it was submitted by reference to SJ [27] that the primary judge was clearly aware of the Court’s power to suspend any sentence imposed and yet formed the view that she was not satisfied that a sentence other than a custodial sentence was appropriate.

34. As to whether the sentence was manifestly excessive, counsel for Mr Sun submitted that it could not seriously be contended by Mr He that the sentence imposed fell outside the range of a proper exercise of her Honour’s sentencing discretion, nor was disproportionate to the contempts committed, nor was so severe as to manifest an error of law. Indeed counsel for Mr Sun submitted that “any sentence more lenient than that imposed by her Honour would represent both inadequate punishment of the criminal conduct of the appellant and insufficient vindication of the court’s authority”.

Relevant principles

Nature of appeal

35. One important consequence of Dowling is that this Court’s appellate jurisdiction in a case such as the present is conferred by s 75A of the Supreme Court Act 1970 (NSW), and the appeal is one by way of rehearing in which the Court must determine the matter on the basis of the law and the facts as they exist at the date of the rehearing cf. Wany v DPP [2020] NSWCA 318 at [22]-[28].

36. Section 75A(10) provides that “[t]he Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”.

37. It follows from this that, to the extent that it is said and established that the primary judge failed to take a matter into account in the exercise of her discretion, that is a matter that this Court, exercising its jurisdiction to make any order that ought to have been made or which the nature of the case requires, may take into account.

Power to suspend

38. Dowling makes it clear that the Crimes (Sentencing Procedure) Act does not apply to proceedings for the sentencing of a person for contempt in the Court’s civil jurisdiction. Even if it did, that Act no longer provides for the suspension of sentences. Section 12 of that Act formerly provided that a court may make an order for the suspension of a sentence of less than 2 years, but this section was repealed on 24 September 2018 by sch 1 [14] of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). In explaining the rationale for the repeal of s 12, the Attorney General of New South Wales said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 2):

“[Suspended sentences] do not hold offenders accountable, 44 per cent of them are not supervised and they have been found to increase the New South Wales prison population”.

39. The power to suspend a sentence, although now repealed by the Crimes (Sentencing Procedure) Act, survives in cases of contempt by virtue of Pt 55 r 13 of the Supreme Court Rules. That rule relevant provides:

“(1)   Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

cf HCR, O 56, r 9.

(2)   Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

(3)   The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.”

40. Part 55 r 13 of the Supreme Court Rules does not give any guidance as to the criteria for the suspension of a term of imprisonment. This has been described as a “common failure”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [79] (Dinsdale). In Dinsdale, Kirby J observed at [80] that:

“The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.” (footnote omitted).

His Honour expressed the view that the decision whether to suspend or not should be exercised by reference to all the circumstances of the case and not solely or largely by reference to the prospect of rehabilitation or contrition: at [84]. Typically, decisions to suspend sentences have been made subject to terms of good behaviour and undertakings to undergo rehabilitation: see, for example, Cumberland Council v Khoury [2017] NSWLEC 14, in which the respondent, who had been convicted on several charges of contempt for failure to obey Court orders, had his sentence of 10 months’ imprisonment suspended on the condition of good behaviour; see also Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495, in which the respondent, who had been convicted of contempt on account of his refusal to take an oath or affirmation and to give evidence, had his sentence of 12 months’ imprisonment suspended on the condition that he enter into a good behaviour bond for the same time period.

Manifest excess

41. The principles as to whether a sentence imposed is manifestly excessive were concisely summarised by RA Hulme JA (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

•    Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•    Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•    It is not to the point that this court might have exercised the sentencing discretion differently.

•    There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•    It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

See also Berryman v R [2017] NSWCCA 297 at [35]; Cabezuela v R [2020] NSWCCA 107 at [102]; Goodbun v R [2020] NSWCCA 77 at [254]; Vuni v R [2006] NSWCCA 171 at [33]; Simmons v R [2020] NSWCCA 16 at [30] (Simmons); Hayek v R [2010] NSWCCA 139 at [37]; Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181 at [45]; Stewart v R [2009] NSWCCA 152 at [16]; Turner v R [2021] NSWCCA 5 at [62] (Turner); and Windle v R [2011] NSWCCA 277 at [55] (Windle).

42. To this oft-cited summary of principles, may be added the following:

1. Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56];

2. Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61];

3. There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61];

4. An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23];

5. The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59];

6. The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68];

7. Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30];

8. Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39];

9. Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and

10. Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].

Consideration

43. As to the first ground of appeal, namely that the Court did not consider suspending the sentence of imprisonment that was imposed, the authorities make clear that there is no general requirement that a sentencing judge should expressly state that he or she has given consideration to how a sentence of imprisonment to be imposed should be served: see, for example, Brown at [49]. Indeed, the appellant recognised that it was only “preferable” for the primary judge to make it clear that alternatives to a full-time custodial sentence had been considered. However, simply because it may be preferable for a primary judge to do so does not warrant appellate intervention, unless the appellant is able to establish that the sentence was otherwise unreasonable or plainly unjust.

44. Further, as submitted by counsel for Mr Sun, the primary judge was clearly aware of the Court’s power to suspend any sentence imposed (see SJ [27]), but nevertheless formed the view that no sentence other than a full-time custodial sentence was appropriate. Technically speaking, a decision to suspend a sentence of imprisonment logically follows a decision that a sentence of imprisonment is warranted. In substance, however, as was observed in Dinsdale, a suspended sentence is a lesser punishment and, in the absence of any terms, a far lesser punishment than one of actual custody.

45. No terms by reference to which the suspension of Mr He’s custodial sentence could be conditioned were proposed, either at first instance or on appeal. No actions were pointed to or suggested which could cure or ameliorate the contempt. In these circumstances, it could not, in my opinion, fairly be said that the primary judge had failed to consider the suspension of the custodial sentence as a meaningful or appropriate sentencing option. Her Honour’s conclusion that nothing less than a custodial sentence was appropriate clearly carried with it the conclusion that a suspended sentence would not be appropriate for what her Honour had rightly described as contumacious conduct at the very serious end of the scale.

46. In any event, even if the primary judge did fail to take the possibility of a suspended sentence into account, no persuasive reasons were advanced in this Court as to why the suspension of Mr He’s sentence would be appropriate and, as noted above, no terms by reference to which the suspension of a custodial sentence could be conditioned were proposed. Compliance with a bond to be of good behaviour could not be readily monitored and a suspension of any sentence imposed would in substance amount to a disproportionately light penalty for a serious contempt, contumacious in its character.

47. Counsel for Mr He drew attention to Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 (Mirus), in which Mr Gage was found guilty of contempt by conduct involving the deletion or destruction of certain electronic files and data, for the material purpose of preventing some or all of those files and data being produced to the Court and available for use as evidence in the relevant proceedings. It was submitted that “Mirus involves a case not too dissimilar to the present circumstances in which the contemnor received a fine in the sum of $40,000 suspended on terms”, although it was conceded that the finding of the Court in that case was that the contempt did not amount to a contumacious disregard of the orders of the Court: see Mirus at [58].

48. Reliance was also placed on Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (Maniam), where the Court of Appeal determined that the repeated refusal by a medical practitioner to respond to a subpoena to attend a criminal trial as a witness amounted to “deliberate and contumacious” contempt: at 317. The Court noted that whilst “[t]he objective seriousness of that conduct and the elements of culpability on the part of the opponent clearly suggested the need for a custodial sentence”, the contemnor there “escape[d] that sentence only because of the fulsome apology, public expressions of contrition and substantial evidence produced, deposing to his good character as a citizen and devotion as a medical practitioner”: at 318. The appellant in the present case submitted that:

“Similarly in the present case Mr He has good character and some evidence of remorse that it is submitted should be significant considerations in determining whether he is committed to prison”.

49. Counsel for Mr He, as noted above, also relied on Campbell as a case “in which the failure to consider whether a sentence of imprisonment should be suspended has necessitated appellate intervention”, although he conceded that “[e]ach case turns on its own facts”. In that case, involving a 13-year-old applicant who pleaded guilty to committing sexual offences against his younger relatives, the Court held that the relevant sentence of imprisonment should be suspended, taking into account the fact that the applicant “was a child at the time of the offences and that the sentencing exercise should primarily focus on his rehabilitation”: at [11]. Despite the very different factual circumstances between Campbell and the present scenario, counsel for Mr He submitted that:

“Where a sentence of less than 2 years imprisonment is imposed and there are clear alternatives available, it is preferable to make it clear that such alternatives have been considered and explain why they are not appropriate. In this case, her Honour, while noting that the plaintiff accepted there was a power to suspend any sentence of imprisonment imposed, otherwise made no mention of why suspending the sentence was inapposite.”

That the primary judge did not deal expressly or at any length with the possibility of suspending the custodial sentence was reflective of the fact that that was not urged upon her; it was not reflective of the fact that her Honour had overlooked it as a possibility.

50. Reliance by Mr He on the cases referred to in the preceding two paragraphs is of limited value. Campbell was a case involving the commission of sexual offences by a minor, and thus is markedly different to the facts and circumstances of the current proceedings so as to provide any meaningful comparison. Whilst there are some similarities between the present case and Mirus, the contempt in that case was not found to amount to a contumacious disregard of the orders of the Court, unlike the present case. Further, whilst the contempt in Maniam was found to be deliberate and contumacious, there the applicant produced a “fulsome” apology, public expressions of contrition and substantial evidence deposing to his good character, whilst in the present case, there was only what was described as “some evidence of remorse” on the part of the appellant.

51. In any event, whilst reference to comparable cases in sentencing may be of some assistance (see Moodie v R [2020] NSWCCA 160 at [83]), it is important to bear in mind the observations by Hoeben CJ at CL (with whom Johnson and Lonergan JJ agreed) in Wilson v R (Cth) [2020] NSWCCA 211 at [77] (Wilson), that there are “limitations on the use that can be made of so called comparable cases”. As his Honour outlined, what is to be sought is consistency in legal principle by the treatment of like cases alike and different cases differently, and that the “choice or four or five cases which are said to be comparable” does not generally assist an applicant: at [77]-[78]. In Vandeventer v R [2013] NSWCCA 33 at [45], Adamson J observed that:

“One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

52. As Hoeben CJ at CL observed in Wilson at [79]:

“The difficulty with the comparison of cases by the applicant is that manifest excess is not established simply by a comparison of sentences imposed in other cases which are often markedly different. To warrant intervention, misapplication of principle must be established (Ngati v R [2018] NSWCCA 32 at [34]). As was set out in Vandeventer v R above, there will always be cases where other offenders appear to have been dealt with more leniently. What must be achieved is consistency and application of relevant principle, not numerical or mathematical equivalence.”

The cases relied upon by the appellant are “markedly different” to the present case before this Court, and are thus of limited utility.

53. Rather, what is required to be established is that the sentence was “unreasonable or plainly unjust”.

54. As outlined by Hall J (with whom McClellan CJ at CL and Price J agreed) in Barlow v R (2008) 184 A Crim R 187; [2008] NSWCCA 96 at [75] (Barlow), the question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence, and the subjective circumstances of the offender.

55. In the present case, the primary judge paid close attention to the matters that were relevant to the objective seriousness of the offence, and to the subjective factors in determining the sentence to be imposed: see [10]-[21] above. By reference to those factors identified by Barrett J in ASIC v Matthews, her Honour provided a detailed summary of the matters which were of primary relevance in the sentencing exercise, including the seriousness of Mr He’s contempts, his culpability, his reasons or motives for the conduct, whether he sought to receive a benefit or gain from the contempt, whether there had been any expression of genuine contrition by him, his character and antecedents, his personal circumstances, the need for specific and general deterrence, and finally the need for denunciation of contemptuous conduct.

56. The primary judge noted that a number of these factors militated strongly towards the imposition of a custodial sentence, including that the contumacious conduct here fell into the “most serious class of case”, that there was a “high degree of culpability”, that Mr He’s actions were calculated to interfere with the administration of justice and that they involved a deliberate disobedience of Court orders. Her Honour also outlined a number of matters which militated towards a reduction in sentence, including Mr He’s apology (albeit belated), the fact that he had no criminal history, that he had been identified as a low risk of re-offending, that he was otherwise of good character, and the fact that the imposition of a custodial sentence would have a severe personal and financial impact upon him and his family, as well as potentially adversely impacting his business endeavours.

57. The primary judge was clearly mindful of the objective seriousness of the offence and the above subjective matters when she came to the conclusion that there was “no alternative in this case other than to impose a term of imprisonment”: SJ [114]. This was a decision well within the sentencing discretion available to her Honour. A suspended sentence would not in the circumstances of the case comprehensively and anxiously considered by the learned primary judge have been warranted.

58. As Walters J observed in Wood v Samuels (1974) 8 SASR 465 at 468, there are no “comprehensive specific criteria” which tell a court when a case is one fit for a suspended sentence. There is no single correct sentence, and the primary judge is to be afforded as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

59. Mr He has failed to establish that the sentence imposed was unreasonable or plainly unjust, or that there was some misapplication of principle, such as to justify appellate intervention. I hereby make the following orders:

1. Appeal dismissed with costs.

2. Dissolve the stay of orders made by Ward CJ in Eq on 25 September 2020 in relation to charges 1–4 as referred to in judgment Sun v He (No 2) [2020] NSWSC 1298.

1. Order that a warrant issue for the committal of the appellant, Xin He (also known as Ethan He), to a correctional centre for a term of six weeks commencing on the date of his arrest.

2. Order that the warrant be executed forthwith.

60. GLEESON JA: I agree with Bell P.

61. McCALLUM JA: I agree with Bell P that the appeal should be dismissed. I prefer to express my reasons for reaching that conclusion in my own words.

62. Mr Sun’s notice of motion to have Mr He dealt with for contempt invoked the Supreme Court’s “general law powers to punish for contempt of court”: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [12] (Basten JA, with whom Meagher JA agreed at [139]). In determining the motion, the primary judge was not dealing with proceedings for an offence; her Honour was exercising the civil jurisdiction of the Supreme Court: Dowling at [57]. The Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to her Honour’s task: Dowling at [58].

63. The decision in Dowling was not overlooked by Mr He in the argument before the primary judge. Her Honour recorded his acceptance, in accordance with that decision, that the alternatives to imprisonment for which the Crimes (Sentencing Procedure) Act provides were not available to her Honour: Sun v He (No 2) [2020] NSWSC 1298 at [20]. Mr He’s arguments on appeal were nonetheless framed in the language of the jurisprudence relating to sentencing for an offence in criminal proceedings, and that was reflected in the authorities cited. While the function of dealing with a person for contempt in civil proceedings has much in common with the sentencing task in criminal proceedings, they reflect the exercise of different powers serving different purposes.

64. As the primary judge was exercising civil jurisdiction, the appeal is governed by s 75A of the Supreme Court Act 1970 (NSW) and is by way of rehearing. However, there is no challenge to any of her Honour’s careful factual findings or to the conclusion that the conduct was contumacious and so fell within the most serious class of contempt, adopting the analysis of Kirby P in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309. The appeal is confined to a challenge to the punishment of the contempt on the findings made. The question of punishment was an issue as to which there was undoubtedly a range of legally permissible outcomes. Accordingly, the “constrained” or “deferential” standard applicable to appellate review of an exercise of judicial discretion adopted in House v The King applies: Dowling at [59] (Basten JA); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48] (Gageler J). While that statement in Dowling was made in the context of a challenge to the length of the imprisonment ordered for contempt, it applies equally to a challenge to the mode of punishment, which is also an issue within the discretion of the judge exercising the punishment power.

65. Aspects of Mr He’s submissions overlooked the constrained standard of review to be applied in respect of the primary judge’s exercise of her discretion as to the appropriate punishment for the very serious acts of contempt found. In particular, the submissions took issue with the weight given to subjective matters (such as Mr He’s prior good character and supposed remorse) and the likely utility of imposing a term of imprisonment. It was contended in that context that committal to a correctional centre would expose Mr He to “criminal milieu criminals”. I confess I do not understand what that means but, in any event, those were all matters for the primary judge in the exercise of her discretion, bearing in mind the objects of the power to punish for contempt.

66. The appellant’s first ground of appeal asserts error in failing to consider suspending the “sentence” (punishment) imposed. For the reasons I have explained, the authority to suspend any punishment imposed in this case derived not from the Crimes (Sentencing Procedure) Act but from pt 55, r 13(3) of the Supreme Court Rules 1970 (NSW). As Basten JA explained in Dowling at [43]-[45], the power to punish contempt in civil proceedings is not fettered by criminal law statutes relating to procedure and sentencing. Nor do the principles developed to guide the discretion of a sentencing judge in criminal proceedings necessarily apply without qualification to such a task, although there is likely to be considerable overlap. The objects of sentencing in criminal proceedings are well understood; they are stated in s 3A of the Crimes (Sentencing Procedure) Act and elaborated upon in many authorities. The primary purpose of dealing with a person for contumacious disobedience of an order of the court is different: it is to vindicate the court’s authority: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108, [20]; [1986] HCA 46. It has been observed extra-curially that the ramifications of the Dowling decision are still to be worked through: see N Adams and B Baker, “Sentencing for Contempt of Court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020 at pars 127-130. What is clear is that the task of sentencing in criminal proceedings is different from the court’s function in contempt proceedings, which is not “sentencing” in the sense in which that term is ordinarily used. For that reason, it cannot be assumed without analysis that principles developed in criminal sentencing proceedings are necessarily applicable to the determination of a motion seeking to have a person punished for contempt committed in connection with civil proceedings.

67. I agree with Bell P that the approach approved in R v Zamagias [2002] NSWCCA 17 did not apply to the determination of Mr Sun’s motion. As his Honour has noted, that decision was concerned with the proper approach to the imposition of a sentence of imprisonment under the provisions of the Crimes (Sentencing Procedure) Act: at [22] (Howie J; Hodgson JA and Levine J agreeing at [1] and [2]) which had no application in the present case.

68. That is not to derogate from the force of the proposition relied upon by Mr He, and accepted by Mr Sun, that imprisonment is a punishment of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115] (Spigelman CJ, Wood CJ at CL and Simpson J). While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law’s acceptance that the right to personal liberty is a fundamental common law right which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 292 (Mason and Brennan JJ). In my view, it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing the offender to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question.

69. It is plain from the reasons of the primary judge that her Honour was aware of the power to suspend any punishment and that she did adopt the approach of regarding imprisonment as a punishment of last resort. Indeed, as submitted by Mr Sun, it can be seen that her Honour gave anxious consideration to that question. After recording her view that no sentence other than a custodial sentence was appropriate, her Honour said at [114]:

“It remains only to say that I have found this matter difficult and I have arrived at the conclusion which I have reached only after extensive reflection. In short, I feel that there is no alternative in this case other than to impose a term of imprisonment.”

Furthermore, as noted by Bell P, no proposal was formulated or argument put as to any terms on which a committal order might be suspended and none suggests itself: cf Maniam (No 2) where, in the absence of any express statutory authority, the Court nonetheless suspended a fine imposed on a doctor on condition that he undertake voluntary service as a medical practitioner at a public hospital.

70. One important factor to which the primary judge had regard in determining the appropriate punishment was the frequency of conduct of the kind engaged in by Mr He and the need to protect the Court’s processes against such conduct. Her Honour said:

“As any regular observer of the duty judge list in the Equity Division will know, time and again there are applications brought for urgent (usually ex parte) relief in relation to allegations of misappropriation of confidential information. In the modern electronic era, for those accused of such wrongdoing to consider that they are in a position with impunity to destroy or manipulate electronic evidence in an attempt to render forensic investigation of the subject matter of the complaint impossible cannot be encouraged…”

71. As the Chief Judge in Equity, her Honour was best placed to assess the seriousness and frequency of such conduct and the best manner in which to deal with it bearing in mind the object of protecting the integrity of the Court. Her Honour discussed all of the factors relevant to that question, assessed their significance and reached the conclusion she did. No error has been shown in that approach.

72. Mr He as much as accepted at the hearing of the appeal that, if the Court rejected the contention that the primary judge erred by failing to consider whether to suspend the punishment, there was little force in the complaint that the punishment was manifestly excessive. The concession was appropriate. There was no challenge to the primary judge’s conclusion that committal to a corrective centre was warranted in the circumstances. That is hardly surprising, given the facts found by the primary judge, which are summarised in detail in the judgment of Bell P, and her Honour’s conclusion that the contempt was contumacious.

73. The primary judge having found that there was no alternative to committal to a correctional centre, and in the absence of any challenge to that conclusion, a term of six weeks was plainly within the appropriate range of outcomes. In circumstances where the order of the primary judge was punitive rather than coercive (Mr He’s conduct having effectively defeated the purpose of the search order and rendered any enforcement futile), any shorter period of committal might have been regarded as derisory.

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Endnote

Amendments

10 September 2021 - Revisions made to the following paragraphs:

[6] - in quote, "Charge 1" - "Particulars":
at (2)(b)(ii), the word "sic" inserted after "of";
at (c), the word "allow" inserted between "to" and "his";

[6] - in quote, "Charge 4" - "Particulars":
at 13(c)(i)(A), the word "sic" added after "had had";

[10], pinpoint reference "at [97]" added following Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111;

[42], at (1), citation for Markarian v The Queen changed to (2005) 228 CLR 357; [2005] HCA 25;

[50], third sentence, "... there was only what the primary judge described as ..." changed to "... there was only what was described as ...";

[58], first sentence, "... there is no 'comprehensive ..." changed to "... there are no 'comprehensive ...."; "tells" changed to "tell";

[70], "... the appropriate punishment (recorded at [67] ... second judgment) was the ..." changed to "... the appropriate punishment was the ..."

Decision last updated: 10 September 2021