JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: R -v- T [2022] WASCA 34
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 16 FEBRUARY 2022
DELIVERED : 23 MARCH 2022
FILE NO/S: CACV 35 of 2021
BETWEEN: R
Appellant
AND
T
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: MONCRIEFF J
Citation: [T] and [R] (SENTENCING) [2021] FCWA 64
File Number : PTW 4513 of 2009
Catchwords:
Family law - Contempt of court by intentionally contravening court orders - Sentencing - Whether totality principle applicable to sentencing for contempt of court - Whether total sentence of 3 years 10 months' imprisonment was manifestly excessive or breached the first limb of the totality principle
Legislation:
Family Court Act 1997 (WA), s 234
Result:
Appeal allowed
Appellant resentenced to 2 years 3 months' immediate imprisonment
Category: A
Representation:
Counsel:
| Appellant | : | R S Ingleby |
| Respondent | : | R S Hooper SC |
Solicitors:
| Appellant | : | O'Sullivan Davies Lawyers |
| Respondent | : | Fahey Mwenda D'Adamo |
Case(s) referred to in decision(s):
[T] v [R] (Contempt) [2021] FCWA 34
[T] v [R] [2018] FCWA 113
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
ASIC v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
DAI v DAA [2005] FamCA 88; (2005) 191 FLR 360
Danchevsky v Danchevsky [1974] 3 All ER 934
Enfield London Borough Council v Mahoney [1983] 2 All ER 901
Faukland v Shikia [2016] FamCAFC 83; (2016) 308 FLR 56
Fauna Holdings Pty Ltd v Mitchell [2000] FamCA 313; (2000) 160 FLR 134
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
In Marriage of Hay [1998] FamCA 95; (1998) 146 FLR 47
In the Marriage of Cummings (1976) 27 FLR 23
In the Marriage of Harper; Ascot Investments Pty Ltd [No 3] (1982) 8 Fam LR 521
In the Marriage of Schwarzkopff (1992) 106 FLR 274
In the Marriage of Tate [No 3] [2003] FamCA 112; (2003) 30 Fam LR 427
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90
Kendling v Kendling [2008] FamCAFC 154; (2008) 220 FLR 399
Lescosky v Durante [2020] FamCAFC 179
LGM v CAM (Contempt) [No 2] [2008] FamCAFC 1; (2008) 38 Fam LR 229
Mackah v Mackah [2017] FamCAFC 62; (2017) 56 Fam LR 516
Mill v The Queen (1988) 166 CLR 59
PDM v JEM [2006] FamCA 1182; (2006) 36 Fam LR 342
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1998) 198 CLR 435
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v T [2020] WASCA…
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- R v T [2022] WASCA 34
- Case
- [2022] WASCA 34
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's conduct and concluded that it was indeed very serious, with significant elements of general and personal deterrence. However, the court found that the total sentence of 3 years and 10 months was disproportionate to the offending conduct, when considering all the circumstances. This conclusion was based on the comparison with other cases, where sentences of less than 2 years had been imposed for similar conduct. The court found that the sentence was unreasonable or plainly unjust, leading to the conclusion that error was to be inferred from the outcome of the sentencing discretion. The court substituted a total sentence of 2 years' immediate imprisonment, finding that this was a more appropriate and proportionate sentence.
While the court noted that the prosecution should not propose specific sentencing ranges, it would impose individual sentences of 1 month's imprisonment in respect of counts 1-10, as this was consistent with the court's own assessment. The court emphasised the need to exercise the sentencing discretion afresh in relation to all counts of contempt. The final orders included a total sentence of 2 years' immediate imprisonment, with concurrent sentences for each count of contempt, reflecting the court's reassessment of the appropriate sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Vaysman v Deckers Outdoor Corporation Inc,[117] the Full Court of the Federal Court of Australia was concerned with a total effective sentence of 3 years' immediate imprisonment imposed in respect of 10 charges of contempt. The charges related to a sustained course of conduct regarding the manufacture and sale of counterfeit 'Ugg Boots' in breach of copyright and in breach of injunctions. The most serious charge concerned the manufacture of over 30,000 pairs of boots which were sold for over $3 million.[118] The contemnor received a sentence of 3 years' immediate imprisonment for this count, with concurrent sentences imposed for other counts. Besanko J (Siopis J agreeing) reviewed a number of sentencing authorities in the Federal Court of Australia and other courts in which sentences of less than 2 years' imprisonment had been imposed.[119] His Honour concluded that the 3‑year sentence imposed on the contemnor was manifestly excessive. A total sentence of 2 years' immediate imprisonment was substituted. The appellant's contumacious conduct in defiance of court orders was undoubtedly very serious and was aggravated by the sustained and persistent nature of the defiance of the court's authority. As discussed below, considerations of both general and personal deterrence were significant in this case. Aside from the appellant's prior good character, there were no significant mitigating factors. However, as serious as the totality of the appellant's conduct was, in our view the total sentence of 3 years 10 months' immediate imprisonment was disproportionate to the offending conduct considered as a whole, having regard to all of the circumstances of the case, including those personal to the appellant. The total sentence stands well above that imposed in any of the cases to which the court was referred, or to which we have referred above, other than the exceptional case of Glasby. In our view the total sentence of 3 years 10 months' immediate imprisonment was unreasonable or plainly unjust, so that error is to be inferred from the outcome of the sentencing discretion. In our view, ground 2 is established. As ground 2 has been established, it is unnecessary for this court to determine the other grounds of appeal. However, it is necessary for this court to exercise the sentencing discretion afresh in relation to all counts of contempt. Although none of the grounds of appeal raised this issue, we note that the respondent should not, at the sentencing hearing, have proposed the specific 1-month sentences for counts 1 - 10, which the primary judge adopted. In Barbaro v The Queen, the High Court held that the prosecution should not be permitted to make a submission to the sentencing judge about the bounds of the available sentencing range. In our view, that principle applies by analogy to sentencing for contempt of court.[120] However, as will become apparent, having considered the question for ourselves without regard to the respondent's submission, we would also impose individual sentences of 1 months' imprisonment in respect of those counts.[120] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [23] - [43].