In the matter of Bauskis

[2006] NSWSC 907

CITATION:	In the matter of Bauskis [2006] NSWSC 907
HEARING DATE(S):	28.7.06, 4.8.06, 23.8.06, 25.8.06, 5.9.06
JUDGMENT DATE :	5 September 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	09/05/2006
DECISION:	Fixed term of fourteen days' imprisonment.
LEGISLATION CITED:	Bill of Rights 1688
CASES CITED:	Registrar, CA v Maniam [No 2] 26 NSWLR 309
PARTIES:	John Peter BAUSKIS (Contemnor)
FILE NUMBER(S):	SC 2006/13638
COUNSEL:	Mr R Cogswell SC, Crown Advocate Contemnor unrepresented
SOLICITORS:	I V Knight, Crown Solicitor Contemnor unrepresented

Ex tempore - checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

TUESDAY 5 SEPTEMBER 2006

13638/06 – IN THE MATTER OF JOHN PETER BAUSKIS

JUDGMENT

1 HIS HONOUR: Sentencing in contempt proceedings was considered by the Court of Appeal in Registrar, CA v Maniam [No 2] 26 NSWLR 309. Much of the following comprises quotations or language adapted from judgment of Kirby P, with the substance of which the other members of the Court agreed. (I have omitted quotation marks and other editorial signs to make for easier reading.) The law of contempt has been fashioned by the Court to protect the administration of justice and is self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. Compliance with orders of the Court is essential to the proper administration of justice.

2 A conviction of contempt of Court is an offence that is criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of the crime. It must also reflect the purpose of the Court’s exercise of this particular, that is, the undisturbed and orderly administration of justice in the Court according to law. In determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes not only of punishing the contemner, but also of deterring the contemner and others in the future from committing like contempts. It is also important to denounce the wrongful conduct in an appropriately emphatic way.

3 In considering these matters the personal feelings of the judge are entirely irrelevant. The matter must be decided objectively and with the unqualified aim of vindicating the rule of law.

4 Contempt is a common law offence for which there is, therefore, no maximum penalty prescribed. The limits upon the Court's powers derive from the purposes which I have already stated and the limitations expressed in the 10th Article of the Bill of Rights 1688, prohibiting the imposition of cruel or unusual punishment or excessive fines. The Supreme Court Rules or now the Uniform Civil Procedure Rules 2005 provide for the punishment of a contemner who is convicted of contempt by permitting both committal to prison or fine or both. Such punishment may be suspended in certain events, which do not apply here. These Rules declare the Court has power of punishment but do not exhaust it.

5 The most serious class of contempt from the point of view of punishment is contumacious contempt, which occurs where the behaviour of the contemner has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice. This conduct must be distinguished simple interference with property rights manifested by a Court order. In cases where such a measure of wilfulness is established, the Court may punish the contemner by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the notion of penal consequences, must be proved to the criminal standard.

6 The circumstances of the contemnor’s offence are sufficiently set out in my judgment dealing with his guilt. I have given him opportunity after opportunity to acknowledge his wrongdoing and to apologise. He has remained defiant throughout, maintaining his right to disobey orders of the Court, maintaining his contempt (using that word in its ordinary meaning) of the Court and the processes of the Court. It appears that he will not be reasoned with. I have therefore decided that I have no other alternative but to commit him to prison.

7 Accordingly, you are sentenced to fourteen days’ imprisonment.

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