Marubeni Equipment Finance (Oceania) Pty Ltd v Harris (No 2)
[2018] VCC 1048
•12 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-02097
| MARUBENI EQUIPMENT FINANCE (OCEANIA) PTY LTD | Plaintiff |
| v | |
| CHAD ANTHONY HARRIS | Defendant |
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JUDGE:HIS HONOUR JUDGE COSGRAVE
WHERE HELD: Melbourne
DATE OF HEARING: 7 June 2018
DATE OF JUDGMENT: 12 July 2018
CASE MAY BE CITED AS: Marubeni Equipment Finance (Oceania) Pty Ltd v Harris (No 2)
MEDIUM NEUTRAL CITATION: [2018] VCC 1048
RULING
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Subject: CONTEMPT OF COURT
Catchwords: CONTEMPT OF COURT – breach of court order – defiant and contumacious breach – whether court should convict – applicable principles for determination of penalty
Legislation Cited: County Court Act 1958 (Vic); County Court Civil Procedure Rules 2008 (Vic); Evidence Act2008 (Vic); Sentencing Act 1991 (Vic); Supreme Court General Civil Procedure Rules 2005 (Vic);
Cases Cited:ACCC v Halkalia Pty Ltd (No 3) [2017] FCA 522; CC Containers Pty Ltd v Desmond Lee (No 10) [2015] VSC 757; Deputy Commissioner of Taxation v Gashi & Anor (No. 3) [2011] VSC 448; DPP v O’Neill [2015] VSCA 325; Equity-One Mortgage Fund Ltd v Pepe [2015] VSC 274; Grocon Constructions (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; Law Institute of Victoria v Nagle [2005] VSC 47; Paccar Financial Pty Ltd v Ian Menzies and Colleen Menzies (No 2) [2015] NSWSC 1622; R v Herald & Weekly Times Pty Ltd [2008] VSC 251; R v Hinch [2013] VSC 520; R v Slaveski [2012] VSC 7; R v Verdins [2007] VSCA 10; R v Yaldiz [1998] 2 VR 376; Vaysman v Deckers Outdoor Corporation Inc [2011] 276 ALR 596;
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Jones | DSS Law |
For the Defendant | Mr T Antos | Stephen Andrianakis & Associates |
HIS HONOUR:
Issue
1 The primary issue in this application is the penalty to be imposed upon the defendant arising from his contempt in respect of the order of the court made on 6 July 2017.
Background
2 The plaintiff ("Marubeni") in this proceeding is engaged in the business of providing finance for Hitachi, John Deere and Bell branded machinery. The defendant ("Harris") was the sole director of Crown Earthmoving Pty Ltd ("Crown"). Crown provided earthmoving and excavation services until it was deregistered on 20 July 2015.
3 On 24 April 2013, Marubeni (as mortgagee), together with Crown (as mortgagor) and Harris (as guarantor of Crown's obligations) executed a Deed of Mortgage granting a mortgage over an Hitachi hydraulic excavator, together with six attachments ("the Excavator"). The amount financed was $167,257.40. Crown took delivery of the Excavator on 26 April 2013.
4 Pursuant to the terms of the mortgage, Crown was required to repay the principal by way of monthly instalments. Crown has been in default of its obligations since 28 July 2015. Following the service of a notice of default on 17 February 2017, which was not rectified, Marubeni issued a writ on 12 May 2017. Marubeni sued Harris in his capacity as guarantor for damages and sought an order for delivery up of the Excavator.
5 On 12 May 2017, Marubeni filed a summons seeking an order pursuant to Rule 31.07 of the County Court Civil Procedure Rules 2008 (Vic) ("the Rules") that Harris deliver up the Excavator. I gave judgment in default of appearance on 6 July 2017. Harris was ordered to deliver up the Excavator to Marubeni by 4.00pm on 13 July 2017 ('the judgment order"). The judgment order contained a penal notice warning Harris of the consequences if he disobeyed the judgment order.
6 By summons filed 6 November 2017, Marubeni sought to have Harris dealt with for contempt of court in failing to comply with the judgment order. Under Rule 75.06(2) of the Rules, where the contempt is committed by a party in relation to a proceeding, the application is made by way of summons in that proceeding.
7 Following difficulties with service of the judgment order, His Honour Judge Woodward made orders on 23 January 2018 in the following terms:
1.The defendant, CHAD ANTHONY HARRIS, attend at Court at 10.00am on 28 February 2018 for the purpose of answering the judgment of this Court dated 6 July 2017.
2.This order and the judgment be taken to be served on the Defendant by:
(a)personal service; or
(b)leaving this order and the judgment with a person apparently over 16 years of age present at the Defendant's last known residential address being 1/180 Copernicus Way, Keilor Downs in the State of Victoria, and stating to that person words to the effect:
“This Order requires the attendance of Mr Chad Harris at the County Court of Victoria at 10:00am on 21 December 2017, failing which he may be arrested.”
3.Upon compliance with order 1(a) or (b), the Defendant shall be deemed to have been duly served with this order and the judgment.
4.The defendant pay the Plaintiff's costs of this application on an indemnity basis.
The order also contained a penal notice to the effect that if Harris did not attend court on 28 February 2018 for the purpose of answering the judgment of the court dated 6 July 2017, he would be liable to imprisonment, sequestration of property or other punishment.
8 Harris did not appear in court on 28 February 2018 when the contempt hearing came on before Judge Ryan.
9 At the hearing, Marubeni submitted the following five elements had to be satisfied to establish a contempt, namely:[1]
[1]Grocon Constructions (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 at [8].
(a) an order was made by the court;
(b) the terms of the order were clear, unambiguous and capable of compliance;
(c) the order was served on Harris (or failure to serve was excused or service was dispensed with pursuant to the Rules of the Court);
(d) Harris had knowledge of the terms of the order; and
(e) Harris breached the terms of the order.
10 Judge Ryan found that Marubeni had proved beyond reasonable doubt that Harris had committed a contempt of court. This arose from two things. First, Harris had knowledge of the judgment order and notice of the application returnable before the court on 28 February 2018, because personal service had been effected upon him on 29 January 2018. Secondly, in breach of the judgment order, Harris did not deliver up the Excavator to Marubeni. Her Honour stated in the course of her ruling that the alleged contempt constituted direct disobedience to the authority of the court and was defiant and contumacious.
11 The matter came before Judge Woodward on 14 May 2018 on the issue of penalty. Harris appeared in person at that hearing. It appears from the court order made that day that His Honour addressed Harris directly, emphasising the seriousness of the hearing and, in particular, explaining that the application was to convict Harris for contempt and to sentence Harris to a term of imprisonment for his disregard of earlier orders served upon him. His Honour explained that there were a number of steps Harris could take in response to the application, including apologising for his previous failures to comply with the court’s orders and dealing with the claim in the proceeding for the return of Marubeni’s equipment. It appears that His Honour suggested to Harris that he obtain legal advice before deciding what to do. Judge Woodward stood the matter down to allow Harris to discuss his options with counsel for the plaintiff and to otherwise consider his position.
12 After this, the matter returned to court and counsel for Marubeni explained that there may be obstacles to the return of the equipment and that Harris had indicated he would like to obtain legal advice. His Honour said that he was prepared to adjourn the matter for a short period to allow this occur. Judge Woodward explained to Harris that it was very important that he or his lawyers attend the adjourned hearing because if there were no appearance, His Honour might be left with no choice but to issue a warrant for Harris’ arrest. The court adjourned the further hearing of the plaintiff’s summons until 30 May 2018.
13 At the adjourned hearing on 30 May 2018, Harris was represented by counsel. Counsel advised the Court that Harris had engaged his instructing solicitor the previous day and that counsel had been briefed earlier that morning. Counsel applied for an adjournment of Marubeni’s application for a period of three to four weeks. Marubeni’s barrister opposed the adjournment and sought to proceed immediately with the application.
14 Judge Woodward referred to the long history of the matter and the defendant’s failure to act expeditiously to secure legal advice. Notwithstanding this, His Honour indicated that given the seriousness of the application for Harris, he was reluctantly prepared to grant one further adjournment to allow the defendant’s legal advisers to obtain proper instructions. His Honour noted in the “Other Matters” section of the order that the Court would not accede to any further adjournments of the contempt application unless such application was supported by affidavit material providing a detailed explanation of why the defendant had delayed to date in properly responding to the application and why any further adjournment was required. On this basis, the further hearing of Marubeni’s summons was adjourned to 7 June 2018 at 2:15 PM before the Commercial Division Duty Judge.
15 At the hearing before me on 7 June 2018, Marubeni filed written submissions in which it argued that the Court should impose a custodial sentence upon Harris in relation to the contempt.
16 Harris attended and was represented again by the same counsel who appeared on 30 May 2018 before Judge Woodward. The position of Harris at the hearing was notable in several respects.
17 First, he filed no affidavit material relating to the application. Especially when the hearing on 30 May 2018 was adjourned in order to provide his legal advisers with the chance to obtain proper instructions, this was unexpected.
18 Secondly, as a result of Harris filing no affidavit material, there was no evidence before the court to explain:
· why Harris did not comply with the order for delivery up of the Excavator made in July 2017;
· whether Harris acknowledged or admitted his wrongdoing;
· why Harris failed to pay the costs orders made against him;
· Harris’ financial position;
· whether Harris was contrite or showed remorse for breaching the court order; or
· any mitigating factors or other issues relevant to the penalty.
19 Thirdly, Harris made no, or no cogent, submissions about what would be an appropriate penalty in this case. Given Harris’s apparent impecuniosity and the unpleasant prospect of imprisonment, I accept that counsel might have had limited options. However, he made no suggestions as to the kind of penalty which the court should impose.
20 Fourthly, neither Harris nor his counsel made any comment or complaint about the process adopted to conduct the hearings regarding the issue of contempt and an appropriate penalty.
21 Finally, at the hearing, counsel for Harris produced four documents upon which he sought to rely. These documents were: a medical report dated 10 November 2017 by Mr Thomas Kossman of Lex Medicus; a medical report by Health Information Services of the Royal Melbourne Hospital City Campus dated 18 November 2016; a report by psychologist, Zac Stojcevski, dated 24 May 2018, and an email dated 7 November 2017 from Senior Constable Onbashi.
22 There was no evidence to explain:
· why these documents were produced for the first time in June 2018 when three of them were written in 2016 and 2017; or
· why the documents were not served earlier on Marubeni.
23 Although I was inclined to accept Marubeni’s submission that the documents were inadmissible, I nonetheless made an order giving Harris the opportunity to make submissions on the documents assuming that they were relevant and admissible. The order which I made noted that the Court was prepared to allow the defendant to file and serve written submissions addressing the four documents. I said that, in particular, the submissions were to set out how and why the documents were relevant to the application, what reliance the court should place upon them and what findings the court should make as a result of reading them. Given the potentially serious consequences which Harris faced as a result of the contempt finding, I considered it appropriate to give him every reasonable opportunity to make appropriate submissions.
24 In making my order regarding these documents, I rejected the position adopted by Marubeni. Marubeni objected to receipt of the four documents and submitted that in circumstances where:
· it had appeared 10 times at court in connection with this dispute with Harris;
· it had not recovered the earthmoving equipment at the centre of the dispute with Harris;
· Harris had not paid any of the costs order made against him; and
· Marubeni did not wish to incur the additional expense of having the documents considered by its own experts or having the authors attend at court for cross examination,
I should simply impose a penalty of imprisonment upon Harris.
25 The court received submissions from Harris on 12 June 2018. The most remarkable aspect of the submissions was that they failed to explain precisely how and why the four documents were relevant to the application, what reliance the court should place upon them and what findings the court should make as a result of reading them. In other words, the submissions failed to address the specific matters which I directed that they address. This was particularly surprising because it was apparent from the history of the application and Marubeni’s submissions that the penalty options for the contempt included imprisonment.
26 At best, the submissions were vague and unhelpful. They pointed out that it was open to the court to rely upon the documents and their contents to make any finding about the defendant’s physical and/or psychological condition as it saw fit. They said that the court could rely upon the medical material to make a finding about Harris’ physical and psychological condition and that, in so doing, the court should have regard to the principles in R v Verdins[2] and Vaysman v Deckers Outdoor Corporation Inc[3] in arriving at a penalty (although these cases were never mentioned, much less explained, in the oral submissions made before me).
[2][2007] VSCA 102.
[3][2011] 276 ALR 596.
27 Overall, the submissions for Harris did virtually nothing to assist his case. They did not seek to explain or justify Harris’ behaviour regarding his failure to obey the court order, his failure to acknowledge his wrongdoing, or his failure to apologise or make amends for his contempt.
28 As permitted by my order of 7 June 2018, the plaintiff filed responsive written submissions on 15 June 2018. The plaintiff observed that the defendant’s submissions failed to address the issues specified by the Court in the order permitting the defendant to file supplementary written submissions. Further, the plaintiff argued that the four documents were not:
· in evidence because they were not tendered in Court;
· relevant to the question of penalty and were therefore inadmissible under section 56 of the Evidence Act2008 (Vic).
29 The plaintiff contended that the two medical documents were from 2016 and 2017 and were historical in nature. They made no mention of the penalty hearing or the issues before the Court regarding penalty. The Stojcevski report did not make any connection between the defendant’s psychological state and the matters relevant to a contempt hearing. Hence, the plaintiff submitted that none of these documents were relevant.
30 The police email was also said to be irrelevant because it had no obvious connection to the contempt hearing. It referred to some outstanding criminal matters and blurry photos.
General principles
31 Section 54 of the County Court Act 1958 (Vic) provides that in respect of contempt of court:
“The court has the same jurisdiction, and may exercise the same powers and authority, in respect of any contempt of the court as the Supreme Court has and may exercise in respect of any contempt of the Supreme Court.”
32 Rule 75.11 of the Rules confers power on the court to impose a penalty for contempt. It provides that where the court finds a natural person guilty of contempt of court, it may punish the contemnor by committal to prison, a fine or both. The court may impose a penalty subject to certain terms. The court has the power to imprison, to impose a fine, to order the payment of costs and to order imprisonment in default of a payment of a fine.
33 Historically, there are two kinds of contempt, civil and criminal. In general terms, civil contempt is a breach of a court order or undertaking. Criminal contempt is a contempt which obstructs the administration of justice.
34 Traditionally, the purpose of imposing a penalty for civil contempt was to coerce the person in breach to act in accordance with the order. The penalty was not intended primarily to be punitive in nature.
35 However, the distinction between a civil contempt and a criminal contempt is not always clear. For example, where a person breaches a court order in an act of deliberate defiance or in a contumacious breach, such a breach can be treated as criminal. The purpose of imposing a punishment for wilful or contumacious disobedience of a court order is to discipline the offender and to vindicate the authority of the court. As noted by Ginnane J in CC Containers Pty Ltd v Desmond Lee (No 10)[4] there has been a well-entrenched practice in this country of allowing a civil contempt to be converted into a criminal contempt in the penalty phase.[5]
[4][2015] VSC 757.
[5][2015] VSC 757 at [19].
36 I adopt the views of Justice Gillard in Law Institute of Victoria v Nagle[6] where His Honour highlighted the seriousness with which courts view breaches of a court order:[7]
“it is vital to the administration of justice in this State that a person bound by an order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained. There is a public interest factor in punishing a contemnor in most cases, especially where the contempt is a criminal one.”
[6][2005] VSC 47.
[7][2005] VSC 47 at [5].
37 In considering whether and how breach of an order should be punished, it is useful to consider whether the disobedience of the court order was casual, accidental or unintentional on the one hand or whether it was wilful and contumacious on the other hand. Generally speaking, if the breach arises from conduct which is casual, accidental or unintentional, then the penalty arising from that conduct should not be severe. The position is different where the breach is wilful or contumacious.
Consideration
38 When determining the appropriate penalty in a particular case, the court should have regard to factors, including the following:
(a) the contemnor’s personal circumstances
(b) the nature and circumstances of the contempt
(c) the actual consequences of the contempt
(d) the effect of the contempt upon the administration of justice
(e) the contemnor’s culpability
(f) the need to deter the contemnor and others from repeating the contempt
(g) the contemnor’s reasons for his or her conduct
(h) the absence or presence of a prior conviction for contempt
(i) the contemnor’s financial means
(j) whether the contemnor has exhibited general contrition and made a full and ample apology
39 The list of factors referred to is not exhaustive. A court is entitled to take into account any other factors which it considers relevant in the particular circumstances of the case.
Harris’ personal circumstances
40 Because Harris filed no affidavit material, I have been forced to rely upon matters noted by Kossman and the others in their medical reports.
41 Harris is single and aged 35. Harris was involved in a collision with a motor vehicle while riding his motorbike in May 2016. Harris injured both wrists and underwent surgery. He fractured his right wrist and fractured his left scaphoid. After surgery, he was advised not to bear any weight on his right wrist and to lift no more than a cup of tea with his left wrist for six weeks. Several weeks after leaving hospital, Harris returned to hospital complaining of pain in his hip, knee and ankle. He had x-rays and a CT scan.
42 Harris has not worked at all since the motorbike accident. It seems that he now lives with his mother. Around the time of the accident, his relationship with his girlfriend of 11 years terminated and he had accumulated business losses of approximately $700,000. According to the psychologist, Harris continues to have physical and psychological symptomology arising from the motorbike accident. Harris has apparently been self-medicating and has committed various driving offences in the time since 2016.
43 The psychologist says that Harris satisfies the criteria for severe adjustment disorder with depressed mood and anxiety. The psychologist opined that Harris also displays symptoms of attention deficit disorder which have not been fully diagnosed. However, the psychologist did not explain: what the criteria were for severe adjustment disorder; what the symptoms of attention deficit disorder were; the extent to which, if at all, either of those conditions might be relevant to, or affect, his conduct in respect of the court order which he ignored.
44 The psychologist believes that Harris can rediscover the successful life he formerly enjoyed.
45 According to Kossman, Harris told him he smokes 15 cigarettes each day, does not consume alcohol and takes Nexium on a regular basis. While Harris’ mother takes care of the household chores and gardening, Harris himself does not undertake any recreational or sporting activities.
46 On the basis of the reports, I would be inclined to accept that Harris was injured in the motor bike accident and has since been depressed. It seems that this was due partly to his injuries, partly to his significant outstanding debt, and partly due to his inability to work. None of the reports suggest that he has an intellectual disability or other mental condition or disorder which affected his ability to discern right from wrong or his ability to decide whether or not to comply with a court order. In other words, there is no link spelled out between any mental condition and the failure by Harris to comply with the order of the court.
47 Nor did the reports state that, by reason of his circumstances, a term of imprisonment would weigh more heavily upon Harris than another person who did not share his physical and mental characteristics.
48 Unfortunately, the material is silent about the extent of any mental condition which Harris suffered from in July 2017 and how the condition might have affected his mental functioning at and since that time.
Nature and circumstances of the contempt
49 Harris has failed to return the Excavator to the plaintiff as ordered by the court. There is evidence that the Excavator was worth in excess of $100,000. Thus, the failure to return the Excavator as ordered by the Court is no trivial matter.
50 In the penalty hearing, counsel for Harris suggested that the Excavator might have been stolen. He argued that the email from Senior Constable Onbashi was important for that purpose. However, the terms of the email are so vague and non-specific that it cannot be said with any degree of certainty that the email does relate to the Excavator. There is no proper basis in the email to infer that the Excavator was stolen. There is no other evidence on the issue. Further, even if the Excavator had been stolen, it would have been simple for Harris to swear an affidavit to that effect. He did not do so. In the circumstances, I do not accept that someone stole the Excavator from Harris.
Consequences of the contempt
51 I have referred earlier to the decision of Gillard J in Nagle’s case. I consider that there is an important element of public interest in upholding the authority of the law. Where a person ignores a court order without apparent reason or explanation, that person, as a matter of principle, threatens the rule of law in Victoria. While it is likely that relatively few people know about the contempt, the court must act to uphold the law and respect for the legal system. Unless the court does this, litigants in particular, and citizens generally, are likely to have less confidence in the legal system.
52
The culpability of Harris
53 On the material before me (and for present purposes I accept the inclusion of the four documents), I conclude that Harris is responsible for his conduct in failing to comply with the court order. The material does not state that Harris was suffering from any condition which affected his ability to:
· understand the significance of a court order; or
· make sensible decisions or rational choices regarding his conduct.
In the absence of any obvious mitigating factors affecting his decision not to comply with a court order, there is no convincing reason established in the evidence to consider that, in and since July 2017, Harris has been in a state where he had diminished responsibility for his actions or was, for some reason beyond his control, less culpable.
The need for deterrence
54 In relation to deterrence, my reading of Verdins indicated where a convicted person suffered from a serious mental disorder, then general deterrence becomes a less important factor in deciding penalty. Depending upon all the circumstances, such as the nature and severity of the symptoms and their effect on the mental capacity of the defendant, general deterrence could be reduced or eliminated as an appropriate purpose of the punishment.[8]
[8]See Winneke ACJ in R v Yaldiz [1998] 2 VR 376, 383 referred to with apparent approval by the Court of Appeal in DPP v O’Neill [2015] VSCA 325 at [53]. See also at [59].
55 Here, the defendant had no convincing evidence to show the nature, extent, and effect of any mental condition at and since the time that the court order was made in July 2017.
56 A court cannot act in a manner which encourages or supports conduct that undermines its own authority. The court must, in my view, regard general deterrence as a relevant factor in this case. Had there been evidence which I accepted to the effect that Harris suffered from some form of mental condition which affected his culpability for the contempt, I agree that general deterrence would be less significant as a factor in determining the penalty
57 However, because there was no such evidence and, in addition, no other evidence of mitigating factors, general deterrence remains an important element in determining the penalty. In addition, there is the issue of specific deterrence. The court needs to deter Harris and others from continuing or engaging in such unlawful conduct.
Reasons for Harris’ contempt
58 In the absence of any material from Harris, the court is unable to say why he acted as he did in failing to comply with the court order. To suggest what might have motivated Harris is nothing more than speculation.
Prior contempt convictions
59 There is no evidence that Harris has a prior conviction for contempt. Indeed, there is no evidence that Harris has any criminal record. Harris did not seek to tender evidence of good character.
Harris’ financial means
60 The limited material suggests that Harris is currently unemployed, has been unemployed since May 2016, and has substantial debts amounting to hundreds of thousands of dollars. This would be consistent with his failure to pay any of the costs orders against him. Because Harris apparently has no money, it is pointless at one level fining him for the contempt. Most likely, it will have no impact upon Harris and he will have suffered no repercussions flowing from his contempt. That being so, fining Harris would be insufficient to vindicate the authority of the court.[9]
General contrition and apology
[9]See Deputy Commissioner of Taxation v Gashi & Anor (No. 3) [2011] VSC 448 at [8(g)] and [13] – [14].
61 As previously noted, the material discloses no contrition or remorse by Harris for the contempt. There is simply no material from which one could reasonably infer that Harris regretted his contempt, was remorseful for his behaviour, or wished to apologise for, or purge, the contempt. Especially when Harris has been present in court on the last two occasions this matter has been before a judge, it seems odd that Harris either personally, or through his barrister, did not use the opportunity to apologise to the court and the plaintiff. One might reasonably infer that the failure to apologise reflected Harris’ view that he had done nothing wrong and there was nothing to apologise for.
Sentencing Act
62 Victorian courts have acknowledged that some provisions of the Sentencing Act 1991 (Vic) (“Sentencing Act”) apply to contempt proceedings. It has been said that common law sentencing principles such as proportionality, totality, parity, parsimony, and the operation of the standard of proof in sentencing proceedings are all relevant and applicable when a judge sentences for contempt. Kyrou J in R v Herald & Weekly Times Pty Ltd[10] ruled that some provisions were relevant in contempt proceedings under Order 75 of the Supreme Court General Civil Procedure Rules 2005 (Vic). His Honour referred in particular to sections 7(1)(a), (c), (f), (h) and (j) and 8(1), and 11-16 of the Sentencing Act. Kaye J in R v Hinch[11] took into account the principle of parsimony reflected in section 5(4) of the Sentencing Act.
[10][2008] VSC 251.
[11][2013] VSC 520
63 In reaching my conclusion about the appropriate penalty in this matter, I have read and taken into account the submissions filed on behalf of Harris. I have also read and taken into account the four documents which counsel sought to put before the Court on 7 June 2018. I have assumed, contrary to the fact, that the four documents were each relevant and admissible and provided to the plaintiff in sufficient time before the hearing to consider them, to obtain instructions about them, and to make submissions about them.
64 I have assumed that in July 2017, Harris was suffering from some physical discomfort arising from his motorbike injuries and some level of depression. I have assumed that his situation in these respects remains the same. I have set out at paragraph 38 various factors which I have considered. Further, I have read and taken account of relevant provisions of the Sentencing Act, together with the more general common law principles referred to earlier.
65 In arriving at a penalty, I have also read and considered various authorities including R v Slaveski, [12]Paccar Financial Pty Ltd v Ian Menzies and Colleen Menzies (No 2),[13] CC Containers Pty Ltd v Lee,[14] Equity-One Mortgage Fund Ltd v Pepe,[15] and ACCC v Halkalia Pty Ltd (No 3).[16]
[12][2012] VSC 7.
[13][2015] NSWSC 1622.
[14][2015] VSC 757.
[15][2015] VSC 274.
[16][2017] FCA 522.
66 In Slaveski, the defendant was found guilty of contempt arising from behaviour occurring near the end of a lengthy civil trial in which Slaveski was the plaintiff and 23 present or former police were the defendants. Slaveski:
· alleged that police officers attempted to murder him as he travelled to court one day and that one policeman threatened him and his wife with a gun;
· alleged that the trial judge was partial, corrupt and behaving improperly;
· threatened the presiding judge; and
· badly disrupted the court hearing on a particular day.
67 Whelan J found that Slaveski’s contempt was intentional, and that Slaveski intended to interfere with, or obstruct, the due administration of justice.
68 In sentencing Slaveski, His Honour noted that:
· Slaveski had a psychiatric history and suffered from a mental disturbance which involved very significant anxiety. One psychiatrist said Slaveski suffered from a delusional disorder and another psychiatrist said that he satisfied the criteria of post-traumatic stress syndrome.
· Slaveski suffered from the mental disorder or impairment of mental function at the time of the offence.
· The condition affected Slaveski’s ability to exercise appropriate judgment – this reduced his culpability.
· Slaveski had attempted to apologise on five occasions either orally or in writing.
· The apologies did not reveal remorse or acceptance of responsibility for his actions but Slaveski’s mental condition inhibited his capacity to accept personal responsibility.
· Without the psychiatric condition, in the absence of a guilty plea, the term of imprisonment would be substantial.
· Mitigating factors were Slaveski’s psychiatric condition, his supportive family and the passage of time since the offending conduct.
Whelan J ordered that Slaveski be imprisoned for two months.
69 This case was instructive in that it showed that a mental disorder, an apology and a guilty plea were factors which could affect the penalty for contempt.
70 In Paccar, Rothman J found the defendants guilty of contempt for failing to forfeit and return to the plaintiff two trucks with attached trailers. The court noted that the defendants had not purged their significant and ongoing contempt of the orders made on 13 June 2013 and that it was unlikely that, without the court’s intervention, that position would change. Rothman J said that the defendants had apologised by letter and made two offers of compromise to the plaintiff. However, His Honour found that the letters disclosed no real remorse for their conduct and a continuing defiance of the court and its authority.
71 The defendants were husband and wife and had been married for 37 years. The husband (the first defendant) was 60 and his wife (the second defendant) was 55. The court found that the first defendant had been employed for most of his working life in earthmoving, civil construction and transport work. He had not worked full-time since 2008. He had suffered three traumatic brain injuries and had been diagnosed with development disorder and acquired brain injury. There was medical evidence that the injury caused the first defendant to be unable to control or regulate his emotion, impulses, planning and social judgment. The court accepted that the first defendant’s lack of understanding of the seriousness of his contempt was likely to have been caused by his brain injuries. Nonetheless, the court found that the first defendant acknowledged and understood the court orders and simply refused to comply with them. Thus, the court said that the first defendant’s mental condition was not necessarily an ameliorating factor when taking into account his non-compliance. His Honour said that once orders of the court had been issued, they must be obeyed whether or not an individual considers the decision to be right or wrong.
72 In relation to the second defendant, the court found that she had suffered from severe depression, anxiety and high levels of stress for a number of years. Some medical evidence suggested that, to some extent, she was controlled by the first defendant.
73 In arriving at a penalty, the court took into account eleven references attesting to the good character of the defendants.
74 The court ordered that the first defendant be imprisoned for six months and the second defendant for two months.
75 Having regard to all of the above, I have decided that Harris should be convicted of contempt and committed to prison for a period of three months. I have reached this decision on the basis that:
· the defendant has been found guilty of contempt in respect of the court order made in July 2017;
· the contempt was found to be defiant and contumacious and is continuing;
· the defendant has not accepted responsibility for the contempt;
· there has been no explanation of the defendant’s conduct;
· the defendant has not apologised or shown any remorse for his contempt;
· the motorbike accident does not excuse the contempt;
· there is no proper basis to find the defendant suffered from any mental disorder or condition relevant to the contempt;
· there is no other penalty which sufficiently reflects the seriousness of the contempt;
· there is no evidence of mitigating factors affecting the commission of the contempt.
In reaching this view I have taken into account Harris’s personal circumstances (assuming they remain as advised to the report writers), especially his health. Had his circumstances been less troubled, I would have imposed a longer sentence.
76 Accordingly, I make the following orders:
1. The defendant Chad Harris is adjudged guilty of contempt of court and is accordingly convicted and sentenced to a period of three months’ imprisonment expiring on 12 October 2018.
3. I order that the defendant pay the plaintiff’s costs of and incidental to this application on an indemnity basis.
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