R v T
[2022] WASCA 34
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 109
Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846
Roffey v The State of Western Australia [2007] WASCA 246
Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299; (1999) 152 FLR 299
Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387.
Witham v Holloway (1995) 183 CLR 525
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
Summary
On 10 March 2021, the primary judge found the appellant guilty of 14 counts of contempt of court. The appellant was remanded in custody. On 15 April 2021, the primary judge sentenced the appellant to a total term of 3 years 10 months' immediate imprisonment in respect of those counts of contempt, backdated to commence on 10 March 2021. The primary judge published separate reasons for the contempt findings,[1] and for the sentence that his Honour imposed regarding those findings.[2] The contempts arose out of the appellant's intentional breach of orders made in property settlement proceedings in the Family Court of Western Australia (primary proceedings). The appellant and respondent were parties to the primary proceedings and had previously been in a de facto relationship.
[1] [T] v [R] (Contempt) [2021] FCWA 34 (Contempt Reasons).
[2] [T] v [R] (Sentencing) [2021] FCWA 64 (Sentencing Reasons).
The appellant now appeals against the order sentencing him to 3 years 10 months' immediate imprisonment. The appellant appeals, in effect, on the following grounds.
1.The primary judge erred in failing to consider the alternative of a suspended sentence (ground 1).
2.The total sentence of 3 years 10 months' immediate imprisonment was manifestly excessive (ground 2).
3.The sentences that the primary judge indicated would be imposed for various counts were individually manifestly excessive (grounds 3, 5, 7, 9 and 11).
4.The primary judge erred in failing to provide adequate reasons as to the length of individual sentences and/or why the sentences should be served cumulatively (grounds 4, 6, 8, 10 and 12).
These grounds of appeal all relate to the sentences imposed for the contempts and do not challenge any of the findings that the appellant committed contempts of court.
For the following reasons, ground 2 is established, and it is unnecessary to deal with the other grounds. The appellant should be resentenced to 2 years 3 months' immediate imprisonment, backdated to 10 March 2021.
Background: the primary proceedings
The appellant (as respondent) and the respondent (as applicant) are former de facto partners who were parties to the primary proceedings in which the respondent sought orders for a property settlement. The primary proceedings, commenced by the respondent on 31 August 2009, were lengthy and involved a very large number of interlocutory disputes.
The primary judge made interim orders on 25 June 2018 providing for certain transactions and certain other matters to be set aside (June 2018 orders).[3] This court dismissed an appeal against the June 2018 orders on 8 July 2020.[4]
[3] [T] v [R] [2018] FCWA 113 (Interim Orders Reasons).
[4] R v T [2020] WASCA 109 (Appeal Reasons).
The following is a summary of the relevant parts of the primary proceedings, taken largely from this court's Appeal Reasons.[5]
The parties and their relationship
[5] Appeal Reasons [7] - [20], [24] - [26], [36] - [37], [46] - [48].
In April 1999, the appellant and respondent commenced living together in a marriage-like relationship.[6] The relationship continued until the appellant and respondent separated on 26 January 2008. They never married.[7]
[6] Interim Orders Reasons [1], [56].
[7] Interim Orders Reasons [1] - [2].
The respondent came into the relationship with two children of a prior marriage.[8] The appellant also has two adult children from a prior marriage (a son and daughter who shall be referred to as the appellant's son and appellant's daughter in these reasons).[9] The relationship of the appellant and respondent produced two children, both of whom were teenagers at the time of the June 2018 orders.[10]
[8] Interim Orders Reasons [6], [57].
[9] Interim Orders Reasons [58].
[10] Interim Orders Reasons [3].
When they commenced living together, the respondent was employed and had accumulated, in her estimation, some $57,000 in superannuation entitlements in her superannuation fund. She also had a motor vehicle, some furnishings and personal effects, together with a small amount of cash. She did not have assets of any significance.[11]
[11] Interim Orders Reasons [61].
The appellant was employed in accounting and auditing pursuits throughout the relationship and made financial decisions within the relationship. He held an interest in, and was employed by, a financial services firm. The appellant also had a substantial interest in a self‑managed superannuation fund (which it is convenient to refer to as the VW Super Fund). He also had (amongst other things) a beneficial interest in a number of properties, including properties owned by the appellant's mother on trust for the appellant.[12] One of those properties was said to be a property in Denmark, of which the appellant's mother was the registered proprietor (Denmark property).
[12] Interim Orders Reasons [62], [67], [69].
The respondent ceased employment in about May 2002, when she assumed the role of primary homemaker and parent. Following her resignation from employment, she rolled her superannuation interest into the VW Super Fund, for which the appellant assumed, with the respondent's agreement, the primary management role.[13]
Asset pool
[13] Interim Orders Reasons [68].
At the time of their separation, the respondent understood, based on representations made by the appellant, that the parties' wealth was around $8 million.[14]
[14] Interim Orders Reasons [73].
The entities in which the appellant held, or allegedly held, interests included:
1.a unit trust, which it is convenient to refer to as the LMN Investment Trust (in which the appellant held most of the units);
2.a discretionary family trust, which it is convenient to refer to as the LMN Family Trust;
3.the VW Super Fund (a self-managed superannuation fund of which the appellant, the appellant's mother, the appellant's daughter and the respondent were members);[15] and
4.a company it is convenient to refer to as GE Pty Ltd (which is effectively controlled by the appellant and which is the trustee of the LMN Investment Trust, the LMN Family Trust and the VW Super Fund).
[15] Interim Orders Reasons [121].
As at 24 December 2009, the appellant deposed, in a statement of financial circumstances, to having net assets and superannuation to a value of $3,943,000.[16]
[16] Interim Orders Reasons [74].
In the statement of financial circumstances filed on 18 August 2016, the appellant deposed to his asset position as being:[17]
1.Total value of property owned: $5,005.
2.Gross superannuation value: $2,200,000.
3.Liabilities: $638,256.
4.Total financial resources: $1,005.
[17] Interim Orders Reasons [74].
The appellant had already reached his preservation age, and upon his retirement his member entitlements in the VW Super Fund would vest.[18] Even on the appellant's case, he would receive $2.6 million upon the vesting of his superannuation entitlements.[19]
[18] Interim Orders Reasons [226].
[19] Interim Orders Reasons [239].
The appellant had, in effect, 'deferred' assets being (at least) $2.6 million in his account in the VW Super Fund, $485,000 in respect of the Denmark property that would pass to him on the death of his (aged and unwell) mother, and other funds that he stood to receive from his mother.[20]
June 2018 orders
[20] Interim Orders Reasons [239] - [240].
The primary judge accepted that it was an appropriate case to make interim property orders, and then to adjourn the matter to a final hearing.[21] His Honour effectively accepted that the final exercise of the power under s 205ZG of the Family Court Act 1997 (WA) (the Act) should be undertaken after the vesting of superannuation entitlements, unless relevant legislation was amended to enable superannuation splitting orders to be made.[22] The judge also found, in effect, that the appellant's failures to disclose documents, including in relation to the VW Super Fund, made it difficult for the respondent, and the court, to identify the pool of assets available for distribution, and to identify the assets in, and the value to be attributed to, the VW Super Fund.[23]
[21] Interim Orders Reasons [79] - [104].
[22] Interim Orders Reasons [76], [229], [243].
[23] Interim Orders Reasons [79], [89], [92], [225], [230], [273] - [274].
On 25 June 2018, the court made orders setting aside:
1.All transactions leading to the non-concessional contribution made by the appellant in 2008 of $96,859 to the VW Super Fund, resulting from the proceeds of sale of property by GE Pty Ltd as trustee of the LMN Family Trust.[24]
2.All transactions leading to the non-concessional contribution to the VW Super Fund of $450,000, made by the appellant in 2011, resulting from the sale of the appellant's interests in an accounting company.[25]
3.The purported contributions made by the appellant on 31 August 2016, involving certain transfers of interest in property syndicates from the LMN Investment Trust to the VW Super Fund.[26]
4.A transfer or issue of units in the LMN Investment Trust, done with the intention of defeating anticipated property settlement orders under the Act.[27]
[24] Interim Orders Reasons [128] - [137].
[25] Interim Orders Reasons [138] - [142].
[26] Interim Orders Reasons [173] - [180].
[27] Interim Orders Reasons [103], [212.84], [212.87], [224].
Under the June 2018 orders, amounts were to be paid to the respondent's solicitor's trust account and disbursed to discharge the appellant's arrears of child support and spousal maintenance, and otherwise as directed by the respondent.
The June 2018 orders also provided for the appellant to pay the respondent a reduced amount of $1,100 per week in spousal maintenance.
Injunctions granted in the primary proceedings
On 2 December 2016, the court granted an injunction restraining the appellant from dealing with certain property and transacting on certain accounts without the prior written consent of the respondent (December 2016 orders).[28]
[28] Contempt Reasons [7].
The June 2018 orders also restrained the appellant from certain dealings in property without the respondent's prior written consent.[29]
[29] Contempt Reasons [8.10].
On 26 July 2019, the court granted further injunctions (July 2019 orders) specifically restraining the appellant from dealing with:[30]
1.the proceeds of the sale of the Denmark property;
2.withdrawals from an account with the National Australia Bank held by GE Pty Ltd as trustee for the VW Super Fund (NAB account) between 27 November 2017 and 14 June 2018;
3.funds held in a Bankwest account in the appellant's name; and
4.funds held in a Westpac Account in the name of the appellant's daughter.
[30] Contempt Reasons [11].
The appellant was aware of the terms of all above-mentioned orders at all material times.[31]
[31] Contempt Reasons [19].
Circumstances of contempt
On 7 April 2020, the respondent filed an application that the appellant be held in contempt of certain orders.[32] The allegations of contempt were eventually distilled into a 'charge sheet'. The substance of the charges,[33] and the primary judge's findings in relation to each of these charges, are set out below.
Counts 1 - 10: smaller payments from NAB Account
[32] Contempt Reasons [28].
[33] Contempt Reasons [29] - [30].
Counts 1 - 10 alleged that, on different dates between 27 November 2017 and 14 June 2018, the appellant withdrew, or caused to be withdrawn, ten amounts totalling $23,625 from the NAB Account. These withdrawals were in breach of:
(a)par 1(c) of the December 2016 orders, which relevantly restrained the appellant from transacting on any accounts, with any bank, held in the name of GE Pty Ltd; and/or
(b)par 1(f) of the December 2016 orders, which relevantly restrained the appellant from removing cash from the VW Super Fund.
The withdrawal of these amounts was alleged to have not been authorised by any of the exceptions to the injunctive orders.[34]
[34] Contempt Reasons [30].
The primary judge was satisfied that the appellant had withdrawn each of the alleged amounts from the NAB Account and paid those amounts into a Commonwealth Bank account in the name of his son (the Appellant's Son's Account).[35] None of the payments were for a purpose authorised by the exceptions to the injunctive orders.[36]
[35] Contempt Reasons [57] - [60] (count 1), [75] - [78] (count 2), [83] - [85] (count 3), [90] (count 4), [95] (count 5), [99] (count 6), [104] (count 7), [109] (count 8), 114 (count 9), [119] (count 10).
[36] Contempt Reasons [61] - [72], [81], [86], [89].
Orders made on 2 February 2017 allowed for the payment of regular insurance premiums from the NAB Account, as an exception to the December 2016 orders. While some of the payments were described as 'insurance' payments on the NAB Account, that was not the true nature of the payments. The use of the identifier 'insurance' was intended to obfuscate the true nature of the payment.[37]
[37] Contempt Reasons [62] - [67].
Other payments were described as 'Rt', which stood for transition to retirement payments, and constituted a breach of par 1(f) of the December 2016 orders.[38]
[38] Contempt Reasons [77] - [79].
The primary judge was satisfied that these payments constituted a flagrant challenge to the authority of the court, as required by s 234(1)(b) of the Act.[39] As to that matter, the primary judge observed:[40]
I am also satisfied that the same constitutes a flagrant challenge to the authority of the Court. Whilst it may be argued that each transfer, and those that followed, may not individually constitute a flagrant challenge, they are to be viewed in the context of the behaviour and not in a vacuum. In this case, it is the behaviour globally by the respondent (as identified in this count, and the remaining counts) that supports and informs the inquiry as to whether he has engaged in a flagrant challenge to the authority of the Court.
Count 11: larger payments from NAB Account
[39] Contempt Reasons [73], [82], [88], [94], [98], [103], [108], [118], [123].
[40] Contempt Reasons [73].
Count 11 alleged that, between 27 November 2017 and 25 June 2018, the appellant withdrew, or caused to be withdrawn, an amount not less than $179,500 from the NAB Account. It was alleged that the sums withdrawn were paid into the Appellant's Son's Account. This was alleged to be a breach of pars 1(c) and/or 1(f) of the December 2016 orders, which was not authorised by any of the exceptions to the injunctive orders.[41]
[41] Contempt Reasons [30.11].
The primary judge found that, between 28 November 2017 and 22 June 2018, a total of $186,044.55 was transferred from the NAB Account to the Appellant's Son's Account. His Honour found that funds were then transferred from the Appellant's Son's Account to the bank account of the appellant's daughter and that $70,234 was subsequently transferred from the daughter's account to the account of the appellant's solicitors for the benefit of the appellant.[42] The primary judge also found that $120,000 was transferred from the Appellant's Son's Account to an account identified as 'cps'.[43]
[42] Contempt Reasons [125] - [152].
[43] Contempt Reasons [140].
The primary judge found that none of these payments were for a permitted purpose and that they constituted a flagrant challenge to the authority of the court.[44]
Count 12: mortgage of the Ocean Beach property
[44] Contempt Reasons [153] - [154].
Count 12 alleged that, on or about 5 October 2018, the appellant, as director of GE Pty Ltd, signed a mortgage over GE Pty Ltd's interest in a property at Ocean Beach (Ocean Beach property), and later allowed registration of that mortgage. This was alleged to be in breach of:[45]
(a)par 10(b)(i) of the June 2018 orders, which relevantly restrained the appellant from encumbering GE Pty Ltd's interest in the Ocean Beach property; and/or
(b)par 10(e) of the June 2018 orders, which relevantly restrained the appellant from entering into any agreements which may, either directly or indirectly, have the effect of disposing of assets, or divesting of rights, held by the appellant or any other entity in which he has an interest.
[45] Contempt Reasons [155].
The primary judge found that, between August and September 2018, the appellant borrowed $50,000 from a business associate and his wife (Mr and Mrs E). The appellant also indicated to Mr and Mrs E that he sought to borrow a total of $100,000. On 22 September 2018, a formal loan agreement for a total of $100,000 was executed between GE Pty Ltd and a company controlled by Mr and Mrs E. This agreement provided for the loan to be secured by a mortgage over the Ocean Beach property. On 5 October 2018, the appellant and his mother executed a mortgage over the Ocean Beach property in their capacity as directors of GE Pty Ltd. The mortgage was registered on 16 October 2018. Mr E contended that the loans were repaid on 23 and 24 January 2019, which the appellant did not challenge.[46]
[46] Contempt Reasons [157] - [164].
The primary judge was satisfied that this breach of the injunction constituted a flagrant challenge to the authority of the court.[47]
Count 13: sale of the Denmark property
[47] Contempt Reasons [166].
Count 13 alleged that, between 11 May 2018 and 18 January 2019, the appellant assisted with, and facilitated, the sale of the Denmark property. It was also alleged that the appellant caused the sale proceeds to be paid into a Commonwealth Bank account in the name of his sister. This was alleged to be a breach of:
1.par 10(e) of the June 2018 orders; and
2.par 10(i) of the June 2018 orders, which restrained the appellant from exercising his rights under any power of attorney, including in relation to any property in his mother's name.
The primary judge was satisfied as to the following facts.[48]
[48] Contempt Reasons [169] - [194].
In late 2018, the appellant told his sister that their mother was planning to sell the Denmark property. At the appellant's request, the appellant's sister opened a bank account to hold the proceeds of sale of the Denmark property (Denmark property account). On 18 January 2019, the proceeds of sale of the Denmark property in the sum of $382,979.30 were paid into the Denmark property account.
At the appellant's instruction, the appellant's sister subsequently transferred all but approximately $10,300 of these proceeds, first to other accounts she held, and then to make payments on the appellant's behalf. The sum of $9,500 was then paid into an account for the care of the appellant's mother.
During the course of the primary proceedings, the appellant actively represented to the court that his mother lacked testamentary capacity.[49] The appellant either held a beneficial interest in the Denmark property or utilised his power of attorney to effect the transactions to benefit himself. This conduct breached par 10(i) of the June 2018 orders irrespective of any interest that the appellant claimed in the property.
[49] Interim Orders Reasons [200].
The appellant caused, or at least facilitated, the sale of the Denmark property, directed how the sale proceeds were to be dealt with and ultimately benefitted from almost all of the sale proceeds. He involved his mother and sister in a scheme to remove assets from the purview of the court and to circumvent the clear intention of the court's orders.[50]
[50] Contempt Reasons [194].
The primary judge was satisfied that this conduct constituted a flagrant challenge to the authority of the court.[51]
Count 14
[51] Contempt Reasons [195].
Count 14 was essentially a replication of count 13, and was struck out by the primary judge.[52]
Count 15: failure to pay spousal maintenance
[52] Contempt Reasons [196].
Count 15 alleged that the appellant failed to pay maintenance to the respondent, or to the Child Support Agency on her account, in the amount of $1,100 per week from 1 July 2018 to 15 October 2020. This was alleged to be in breach of par 6 of the June 2018 orders.[53]
[53] Contempt Reasons [30.15].
The primary judge found that the appellant had failed to make any payments of spousal maintenance in compliance with par 6 of the June 2018 orders. The judge also found that the appellant had funds available to him that he had not applied in discharge of his obligations to pay maintenance. The arrears were in the amount of $131,853.97.[54]
[54] Contempt Reasons [199] - [209].
The primary judge was satisfied that the non-payment of spousal maintenance was a flagrant challenge to the authority of the court. His Honour said that this finding was:[55]
reinforced by not only the totality of the conduct by the respondent in his attempt to obfuscate transactions and place significant funds in the hands of others in breach of the orders, but that the payment of maintenance was a permitted payment, yet no payment was made, nor application, as available to vary or discharge the relevant order of 25 June 2018.
[55] Contempt Reasons [210].
Appellant's personal circumstances
The primary judge found that the appellant was 61 years old at the time of the Sentencing Reasons, in good health and with no relevant criminal history. The appellant is highly intelligent and articulate. He has held responsible positions and appears to have been highly regarded in his professional roles as an accountant and auditor. He has two adult children from a previous relationship, who he involved in the contempt, and two children of his relationship with the respondent. The appellant had offered support to the community by providing assistance to Anglicare and had rendered service though a marine rescue service.[56]
[56] Sentencing Reasons [37] - [43].
Primary judge's approach
The primary judge sentenced the appellant under s 234 of the Act, and identified the relevant sentencing principles as being those explained in the decisions of the Full Court of the Family Court of Australia, In the Marriage of Schwarzkopff,[57] and In the Marriage of Tate (No 3).[58] His Honour also referred to more general decisions related to sentencing for contempt of court: Pelechowski v The Registrar, Court of Appeal (NSW),[59] ASIC v Michalik,[60] and Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd.[61]
[57] In the Marriage of Schwarzkopff (1992) 106 FLR 274.
[58] In the Marriage of Tate [No 3] [2003] FamCA 112; (2003) 30 Fam LR 427.
[59] Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1998) 198 CLR 435 [149].
[60] ASIC v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115.
[61] Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 114.
The primary judge then described the seriousness of the appellant's contempt of court in the following terms:[62]
The [appellant] has engaged in behaviour intended to conceal or obfuscate. His conduct has been systemic and repeated.
The [appellant's] regard for the orders of the Court has been limited only to his attempts at obfuscation by the use of descriptors for transactions that may on the face of the representation [suggest] that his actions were not undertaken in disobedience of the orders.
In furtherance of his breaches he has engaged others. He has utilised the accounts of two of his now adult children. He has utilised the accounts of his sister and caused her embarrassment through her being unable to access funds, given injunctive orders that were put in place to restrain the respondent from this further conduct.
He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit, what is, on his case, the property of his mother, by exercising, in breach of an injunction, a power of attorney held jointly with his sister and caused embarrassment to his mother in terms of the inability to access the provision of services required for her as she ages and has been at times consequentially dependent on the provision of necessities by others.
His conduct has embarrassed a reputable firm of solicitors who he instructed to conduct an appeal from the orders of June 2018 and utilised funds found to have been taken in breach of relevant orders to fund the provision of those services.
He has utilised his undoubted skill as an accountant and auditor and sought to enlist the aid of others, whether innocently or otherwise, with a seemingly complete disregard for the impact his actions may have upon them.
He has shown no remorse and seeks to excuse his conduct, but in my finding, with the full knowledge that his conduct was in breach of the orders.
[62] Sentencing Reasons [15] - [21].
The primary judge said that, while counts 1 - 10 individually were not of significance, they formed part of a collective pattern of behaviour intended to remove property claimed by the respondent from the asset pool.[63] Counts 1 - 11 involved over 80 transactions designed to mislead the compliance department of any bank that had been served with the injunction and to thwart attempts to trace funds. In relation to count 12, his Honour noted that a substantial body of funds transferred from the relevant accounts remained unaccounted for and that the mortgage over the Ocean Beach property had not been discharged at the time of the Sentencing Reasons.[64]
[63] Sentencing Reasons [22].
[64] Sentencing Reasons [24].
With regard to count 13, the primary judge accepted submissions made by the respondent to the following effect. The appellant intended to remove the sale proceeds of the Denmark property from the reach of the court and use them for his own benefit. This was made clear by the way the appellant used the sale proceeds, including a payment of $110,000 to Mr and Mrs E and $118,000 to his solicitors. However, it was particularly egregious that the appellant withdrew the remaining sale proceeds by large and repeated cash withdrawals commencing two days after he was served with the further and more specific injunctions made in the July 2019 orders. While approximately $220,000 of the sale proceeds had been captured in his solicitors' trust account, a large portion of the remaining funds were withdrawn in cash over a five-month period and the whereabouts of those funds have not been disclosed.[65]
[65] Sentencing Reasons [25].
The primary judge also noted that the failure to pay spousal maintenance had continued for two and a half years, during which time the respondent had limited income. During this time the appellant had the benefit of funds that would otherwise have been permissibly payable to the respondent pursuant to the terms of the orders breached.[66]
[66] Sentencing Reasons [27] - [28].
The primary judge noted that the respondent had apologised for his conduct at the sentencing hearing. However, the judge was 'left with some concern as to the sincerity' of the apology.[67]
[67] Sentencing Reasons [36].
The primary judge further observed:[68]
The systematic and continuing breaches and the circumstances and manner in which they were undertaken and the involvement of others takes these breaches, in my finding, towards the more extreme end of seriousness.
In determining sentence, I must have regard not only to the circumstances of the offending and its seriousness and the punishment that is due to reflect that seriousness, but also to discourage others and demonstrate publicly that the Court enforces its orders and views a failure to comply with its orders with the utmost seriousness.
[68] Sentencing Reasons [45] - [46].
The primary judge agreed with the respondent's submission that the breaches constituting counts 1 - 10 should each attract a term of imprisonment of one month to be served cumulatively.[69]
[69] Sentencing Reasons [48].
The primary judge rejected the respondent's submission that the appellant should be imprisoned indefinitely for counts 11, 12 and 13, with a conditional release upon his purging his contempt. While his Honour thought that counts 11 and 12 'may be capable of being purged', he was not satisfied that count 13 could be 'purged in its entirety'. The primary judge was also of the view that a term of indefinite imprisonment 'may lead to a penalty that is disproportionate'.[70] His Honour observed:[71]
In the circumstances, I propose to fix an additional term of imprisonment with the capacity for the [appellant] to request an early release upon demonstrating that he has either purged his contempt, or demonstrating the attempts that he has made to purge his contempt and a commitment to the future compliance with orders reinforced by a demonstration that he has complied with previous orders; particularly orders directed to the proper and meaningful identification and valuation of the asset pool, where he has not done so to this point.
Absent a fulsome disclosure of the dealings with the funds the subject of count 13, the [appellant] could not bring such an application in an expectation of an early release.
[70] Sentencing Reasons [49] - [52].
[71] Sentencing Reasons [50] - [51].
After indicating that imprisonment was warranted for count 15, the primary judge observed:[72]
These are serious prolonged and sustained breaches of orders and in those circumstances the sentence should reflect the seriousness with which the Court views such breaches. Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that it is the only appropriate penalty in the circumstances and having due regard to the observations of appellate courts, and the objects of sentencing referred to therein. (emphasis added)
[72] Sentencing Reasons [54].
The primary judge was accordingly satisfied that an immediate custodial sentence should be imposed and indicated he would sentence the respondent to 3 years 10 months' imprisonment from 10 March 2021 (being the date that the appellant was remanded in custody pending sentence).[73] The sentences for individual counts were expressed to be as follows:[74]
•Counts 1‑10 – term of imprisonment of one month for each offence cumulatively, that is to say ten months in total.
•Count 11 – an additional 12 months.
•Count 12 – an additional 12 months with both terms for counts 11 and 12 to be served concurrently.
•Count 13 – a further sentence of 12 months to be served cumulatively.
•Count 15 – a further sentence of 12 months to be served cumulatively.
[73] Sentencing Reasons [55] - [56].
[74] Sentencing Reasons [55].
The primary judge concluded the reasons for his penalty decision as follows:[75]
However, the key to an early release rests in the hands of the [appellant] who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders made in these proceedings requiring the production of accounts or information, such that the valuation of the parties' superannuation interests in the [VW Super Fund] and the pool of assets can be properly and adequately determined. Further, that he disclose the location of funds withdrawn from all accounts or account for their expenditure in an objective and ascertainable way, including and in particular [an account in the appellant's sister's name, into which proceeds of the sale of the Denmark property were subsequently paid], in particular those transactions entered into after 28 July 2019.
[75] Sentencing Reasons [57].
Legislation
Section 234 of the Act makes the following provision in relation to punishment for contempt of the Family Court of Western Australia:
(1)Subject to subsection (1a), this section applies to a contempt of a court that —
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1a)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)Despite any other law, a court may punish a person for contempt of that court.
(3)The rules may provide for practice and procedure as to charging a person with contempt of court, the hearing of the charge and dealing with a person so charged.
(4)Where a natural person is in contempt of a court, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt of a court, the court may punish the contempt by sequestration or fine or both.
(6)For the purposes of this section, a court may make an order for —
(a)punishment on terms; or
(b)suspension of punishment; or
(c)the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt of a court, the court may order the person's discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
The provisions of the Sentencing Act 1995 (WA) do not apply to or in respect of a person being punished by a court for contempt of court.[76]
[76] Sentencing Act s 3(3)(a).
Whether the total sentence is manifestly excessive
Although the primary judge referred to sentences that would be imposed for different 'counts', the order that the court ultimately made on 15 April 2021 imposed a single sentence of 3 years 10 months' immediate imprisonment in respect of all relevant conduct. It is convenient to begin by dealing with ground 2, which contends that the total sentence is manifestly excessive.
Appeals from discretionary sentencing decisions: general principles
Sentencing a person for contempt of court is a discretionary decision. The principles governing appeals from discretionary decisions were explained in House v The King[77] and apply in the current circumstances. It is not enough that this court would have imposed a different sentence had it been sentencing the appellant. The appellant must point to some express or implied error in the sentence imposed.
[77] House v The King (1936) 55 CLR 499, 504 - 505.
An allegation that a sentence is manifestly excessive contends that an error is to be inferred from an outcome of the exercise of the sentencing discretion, which is explicable only by an error of principle. That is, as Dixon, Evatt and McTiernan JJ noted in House:[78]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[78] House (505).
Similarly, in R v Pham,[79] French CJ, Keane and Nettle JJ observed:
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle. (citation omitted)
[79] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (point (7)).
Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.[80] The range of sentences imposed do not mark the boundaries of a proper exercise of sentencing discretion but rather operate as a yardstick against which to examine a proposed sentence.[81]
Sentencing for contempt of court constituted by breach of orders
[80] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [58].
[81] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] - [55], [59].
Sentencing for a contempt of court constituted by a breach of the court's orders may serve two distinct purposes. These purposes may be described as coercive and punitive. A sentence for contempt may provide a coercive means by which court orders can be enforced and future compliance with the order secured for the benefit of a party to the proceedings can be ensured. However, a sentence for contempt may also punish wilful disobedience of a court's order so as to vindicate judicial authority and maintain the integrity of the court's process in the public interest. These different purposes mark the distinction between civil and criminal contempt. Although the significance of that distinction has been reduced almost to the point of obliteration in Australia, the dual purpose of sentencing for contempt of court remains and imposition of a single sentence may serve both purposes.[82]
Coercive elements of sentencing
[82] See Witham v Holloway (1995) 183 CLR 525, 530 - 534; Mudginberri Station (106 - 109, 113).
Under the general law, the courts have power to impose an indefinite sentence that will be discharged when the contemnor complies with the relevant order. In the past, an indefinite sentence has been seen as preferable where the purpose of the sentence is coercive. In Danchevsky v Danchevsky,[83] a husband in a family law matter steadfastly refused to obey an order that he give up possession of a former matrimonial home as cooperation in its sale. Lord Denning observed:
It seems to me that when the object of the committal is punishment for a past offence, then, if he is to be imprisoned at all, the appropriate order is a fixed term. When it is a matter of getting a person to do something in the future - and there is a reasonable prospect of him doing it - then it may be quite appropriate to have an indefinite order against him and to commit him until he does do it. But if there is no such prospect - as here - there should not be an indefinite term. If he is to be imprisoned at all, it should be for a fixed term for his past disobedience. (original emphasis)
[83] Danchevsky v Danchevsky [1974] 3 All ER 934, 937.
Indefinite imprisonment for contempt was abolished in the United Kingdom by s 14(1) of the Contempt of Court Act 1981 (UK). Section 14(1) of that Act sets a 2-year maximum sentence in the case of committal by a superior court. By contrast, s 234 of the Act does not create a maximum term of imprisonment for contempt. Sentences of indefinite imprisonment have been imposed in Australia in family law cases where Lord Denning's observations have been applied. However, the predicate for such an order has remained that there is a reasonable prospect of the contemnor complying with the orders.[84]
[84] See, for example, In the Marriage of Harper; Ascot Investments Pty Ltd [No 3] (1982) 8 Fam LR 521, 531.
Further, when it is apparent that coercion will not work, a fixed or indefinite order of imprisonment should be discharged when the ineffectiveness of its coercive purpose has been demonstrated. For example, in Enfield London Borough Council v Mahoney,[85] the contemnor was sentenced to 2 years' imprisonment for refusing to comply with an order requiring him to hand over an artefact that he had found on council land. After serving almost 12 months of that sentence, the contemnor still refused to deliver the item and was 'prepared to stay in prison until doomsday'.[86] In ordering his release, Watkins LJ observed:[87]
Of the two elements of the punishment inflicted by the original order, one has by now surely been served, namely that of punishment for the contempt itself. All that remains now of the order, so it is asserted, is that part of the period of two years which can only be said to relate to the coercive effect which it was hoped by the judge the sentence would impose on him. It being obvious to everyone now that no form of coercion, including no matter how long a stay in prison, is going to cause this man to change his mind; it is pointless to keep him where he is.
[85] Enfield London Borough Council v Mahoney [1983] 2 All ER 901.
[86] Mahoney (904).
[87] Mahoney (906).
As is apparent from this discussion, the permissible coercive effect of a sentence for contempt can only subsist where there is a reasonable prospect of the order achieving its aim. Where, as in Mahoney, a contemnor has demonstrated his or her resolve to remain in prison, rather than purge the contempt, then continuing the imprisonment on coercive grounds will be unwarranted.
The primary judge's reasons make it clear that the sentence he imposed on the appellant was designed to have both a punitive and a coercive effect. His Honour expressly contemplated that the appellant could seek a discharge of the sentence if he purged the contempt or demonstrated that he had taken all practical measures available to him to do so.[88]
[88] Sentencing Reasons [50].
However, the coercive effect of the sentence imposed by the primary judge would be shown to be ineffective well prior to the expiry of the 3 years 10 months term of imprisonment imposed. If, for example, the appellant had remained in prison and was steadfastly refusing to attempt to purge his contempt for a period of 2 years, there would be no reason to suppose that he might then do so during the balance of his sentence. Therefore, in our view, the length of the total sentence imposed by the primary judge cannot be justified as an exercise in coercion. The total sentence of 3 years 10 months' immediate imprisonment could only be justified as punishment that is commensurate with the seriousness of contempt charges considered as a whole.
Punitive elements of sentencing
It is also clear that punishment of past intentional disobedience of court orders is a significant consideration in sentencing for contempt of court. As the Full Court of the Family Court of Australia recognised in Tate:[89]
Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
Application of the totality principle
[89] Tate [57].
There have been a number of occasions on which the Family Court of Australia has considered the proper approach to sentencing for multiple charges of contempt under s 112AP of the Family Law Act 1975 (Cth), which is the equivalent of s 234 of the Act.
The decisions were reviewed in DAI v DAA.[90] In an early decision, In the Marriage of Cummings,[91] the Full Court of the Family Court of Australia had expressed the view that, under a precursor to s 112AP, it was preferable to consider the penalty globally rather than in reference to particular 'charges' or 'counts'. However, views on the correctness of that proposition have differed since that time. In DAI v DAA, the Full Court of the Family Court of Australia noted that s 112AP did not specify whether a 'global' penalty may be, or should be, imposed for more than one offence, or whether multiple allegations, if proved, should be the subject of discrete sentences including imprisonment to be served either concurrently or cumulatively.[92] The court concluded that s 112AP affords a sentencing judge a wide discretion, which is to be exercised transparently and in light of the individual facts and circumstances of the case.[93]
[90] DAI v DAA [2005] FamCA 88; (2005) 191 FLR 360 [45] - [50], [60] - [80].
[91] In the Marriage of Cummings (1976) 27 FLR 23, 31.
[92] DAI v DAA [60].
[93] DAI v DAA [80], [85] referred to with approval by the Full Court in Faukland v Shikia [2016] FamCAFC 83; (2016) 308 FLR 56 [14] - [15].
In our view, approaching a case by way of the imposition of a global penalty should not lead to a different total sentence than would be arrived at by imposing individual sentences for discrete charges and then applying the totality principle by ordering the sentences to be served cumulatively or concurrently.
In the former case, the court looks to the sentence that is proportionate to the criminality involved in the offending considered as a whole, having regard to all of the circumstances, including those personal to the contemnor.
In some cases discrete individual sentences may be imposed on a contemnor found guilty of multiple counts of contempt, and the period of imprisonment may extend beyond a period in which the ineffectiveness of the sentence as a deterrent will be demonstrated. In such cases it will, in our view, be necessary for the sentencing court to have regard to the totality principle of sentencing in determining the appropriate total effective sentence.
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[94]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[94] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The totality principle is a common law concept, the application of which does not depend on express provision being made by the relevant sentencing legislation. The principle has been applied in a wide variety of contexts, as illustrated by the High Court of Australia's discussion in Mill v The Queen.[95] While questions of cumulation and concurrence may well be affected by particular statutory rules,[96] the totality principle itself is an aspect of the general law against which statutory provisions must be read.
[95] Mill v The Queen (1988) 166 CLR 59, 62 - 63.
[96] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [47].
In Lescosky v Durante,[97] Strickland J was concerned with a global fine imposed by a magistrate as a sanction for a series of contraventions of orders without reasonable excuse. Section 112AD of the Family Law Act, in pt XIIIA of that Act,[98] empowers the court to sanction the contravention of orders in those circumstances. The contemnor appealed, contending that the total effective sentence infringed the totality principle. Strickland J held that it is not open to the contemnor to assert error by the magistrate failing to apply the totality principle.[99] We do not agree with that view. The court's approach in Lescosky should not be applied to sentences of imprisonment for contempt imposed under s 234 of the Act.
[97] Lescosky v Durante [2020] FamCAFC 179.
[98] Equivalent to pt 10 of the Act.
[99] Lescosky v Durante [15].
In the present case, the primary judge indicated in his reasons the individual sentences that were appropriate for each individual contravention found against the appellant.[100] Having taken that approach, his Honour was required in this case to consider the application of the totality principle in determining the appropriate total effective sentence to be served. It was not open to the primary judge simply to accumulate the individual sentences without having regard to that principle.
Customary sentencing practices
[100] Sentencing Reasons [55].
In determining whether error is to be inferred from the sentence ultimately imposed, it is relevant to have regard to the range of sentences customarily imposed in similar cases.
In undertaking that comparison, it is important to bear in mind that the range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect.
In PDM v JEM,[101] the Full Court of the Family Court of Australia upheld an indefinite sentence that was imposed as a result of the contemnor using real property as security for a loan in breach of an injunction. The contemnor had diverted the loaned money, resulting in a loss of about $500,000 to the available pool of assets. The sentencing judge contemplated that the contemnor could apply for discharge once he had purged his contempt by repaying the money or by demonstrating his inability to do so.[102] The contemnor also received a 3-month sentence of immediate imprisonment for deliberately breaching an order requiring him to supply an address for service within Australia.
[101] PDM v JEM [2006] FamCA 1182; (2006) 36 Fam LR 342.
[102] PDM [15].
In DAI v DAA, the parties had separated shortly after selling their matrimonial home. The proceeds of sale were placed in a joint bank account. The contemnor husband transferred the proceeds into his own bank account and began to distribute them to relatives and friends. The wife obtained an injunction and, in consequence of the orders, the contemnor retrieved the sale proceeds from his relatives. However, in breach of the injunction, the contemnor transferred $180,000 of the proceeds to an aunt in Switzerland. Further orders were made that the contemnor direct the aunt to return the funds that had been transferred to her. The contemnor refused to comply. He also refused to provide the addresses of the persons to whom funds had been directed in breach of the injunction. The contemnor was found guilty of contempt of court and appealed against a total sentence of 18 months' immediate imprisonment on the ground it was manifestly excessive. The Full Court of the Family Court of Australia dismissed the appeal.[103]
[103] DAI v DAA [8] - [23].
In LGM v CAM (Contempt) (No 2),[104] the contemnor mortgaged a property in which she held a half-interest to secure a loan of $300,000 and sold her interest in another property for $144,500, both in breach of an injunction. The contemnor had attempted to purge the contempt by making a late apology (which the sentencing judge did not regard as sincere), discharging the mortgage (but not the $300,000 loan) and borrowing $144,500 to place in a solicitor's trust account.[105] She received sentences of 4 months' immediate imprisonment on each of the two counts of contempt, with a partial accumulation, resulting in a total effective sentence of 6 months' immediate imprisonment. The contemnor appealed the sentence, including on manifest excess grounds. The Full Court of the Family Court of Australia dismissed the appeal.
[104] LGM v CAM (Contempt) [No 2] [2008] FamCAFC 1; (2008) 38 Fam LR 229.
[105] LGM v CAM [64] - [80].
In Tate, the contemnor flagrantly breached court orders requiring him to retain and then deliver up a model car collection and to give discovery in the proceedings. This was the culmination of 'an extraordinary campaign of disobedience and non-compliance with court orders'.[106] He was found guilty of contempt and, on appeal, the Full Court of the Family Court of Australia upheld a total sentence of 4 months' immediate imprisonment.
[106] Tate [11].
In Rutherford v Marshal of the Family Court of Australia,[107] the contemnor breached an injunction requiring him to pay the net proceeds of the sale of the former matrimonial home (which was the parties' main asset) into a joint account. The contemnor diverted the proceeds of sale, of about $400,000, into his own account and gambled the funds away. The contemnor appealed against his sentence of 3 months' immediate imprisonment, including on manifest excess grounds. The sentence was upheld by the Full Court of the Family Court of Australia.
[107] Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299; (1999) 152 FLR 299.
In Fauna Holdings Pty Ltd v Mitchell,[108] the contemnors knowingly caused payments totalling approximately $1 million to be made by a company, in which the contemnor husband had an interest, in breach of an injunction. The husband had also sold a boat for $200,000 in breach of an injunction. The primary court sentenced persons involved in the contempt to either 2 or 3 months' immediate imprisonment, with the husband receiving an additional cumulative sentence of 2 months' immediate imprisonment in respect of the sale of the boat. The Full Court of the Family Court of Australia dismissed an appeal against sentence.
[108] Fauna Holdings Pty Ltd v Mitchell [2000] FamCA 313; (2000) 160 FLR 134 [9.23], [46], [52].
In Faukland, the contemnor was found guilty of two counts of contempt after a contested hearing. The contemnor husband sold a prestige motor vehicle in breach of an injunction. The primary judge ordered the contemnor to supply the details of the purchaser or, failing that, to deliver up possession of the motor vehicle to the wife's solicitors' offices. The contemnor failed to comply with the orders. He was found guilty of contempt and received a cumulative sentence of 3 months' imprisonment on each count. The sentences were initially suspended indefinitely. On appeal, the Full Court of the Family Court of Australia held that it was not appropriate to suspend the terms for an indefinite period. The court did not interfere with the terms of imprisonment but substituted a fixed term of suspension.
In Kendling v Kendling,[109] the contemnor husband breached injunctions by causing a company he controlled to borrow at least $1.1 million and granting a mortgage over 10% of his shares in the corporation as security for a loan of $1.5 million. The amounts involved represented only a small proportion of the contemnor's considerable wealth that was subject to a property dispute. The sentencing judge imposed concurrent sentences of 4 months' and 2 months' immediate imprisonment in respect of those contempt charges. The Full Court of the Family Court of Australia in effect found this sentence to be manifestly excessive as to type. This conclusion was reached in light of the fact that the husband had purged his contempts, that the wife had not suffered, and would not suffer, as a result of the husband's contempts and the fact of the husband's age, health and absence of relevant prior convictions.[110]
[109] Kendling v Kendling [2008] FamCAFC 154; (2008) 220 FLR 399 [80] - [81].
[110] Kendling [435].
In Marriage of Hay concerned a contravention of an injunction by increasing the value of a loan secured by a mortgage over real property by $400,000.[111] The primary court initially imposed a sentence of 6 months' immediate imprisonment. On appeal, the Full Court of the Family Court of Australia substituted the sentence with a fine. This was on the basis that there was no finding or evidence that the contemnor deliberately intended to breach the injunction.
[111] In Marriage of Hay [1998] FamCA 95; (1998) 146 FLR 47.
It is also relevant to note cases outside of the family law context, where substantial sentences of immediate imprisonment have been imposed for contempt of court.
In Allbeury v Corruption and Crime Commission,[112] the contemnors were dealt with for contempt arising from their refusal to answer questions, or refusal to be sworn, in proceedings before the Corruption and Crime Commission. The primary court sentenced each of the contemnors to 2 years' immediate imprisonment. The court imposed an additional cumulative sentence of 3 months' imprisonment on one contemnor for insulting the Commission. These sentences were challenged on grounds including manifest excess. However, the appeals were dismissed. In the course of doing so, Buss JA (as his Honour then was) reviewed a number of cases where sentences of imprisonment were imposed for serious instances of contempt of court.[113] With the exception of Registrar, Criminal Division, Supreme Court of New South Wales v Glasby, where a six-year sentence was imposed for a deliberate refusal to give important evidence in a murder trial with the intention of perverting the course of justice,[114] all of the reviewed sentences of imprisonment were for 2 years or less.
[112] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425.
[113] Allbeury [230] - [236].
[114] Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846.
A detailed review of principles for sentencing for contempt of court was undertaken by the Full Court of the Federal Court of Australia in Kazal v Thunder Studios Inc (California).[115] That case essentially concerned the promotion of a website containing allegations against Thunder Studios (by signed vans, tweets and website posts) in breach of an injunction. A total effective sentence of 15 months' immediate imprisonment was imposed by the court on resentencing in respect of four counts of contempt.[116]
[115] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 [95] - [118].
[116] Kazal [191].
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.
Disposition
[117] Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387.
[118] Vaysman [91] - [92].
[119] Vaysman [128] - [135].
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.
Other grounds of appeal
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].
Resentencing
It is then appropriate for this court, which has the necessary material, to determine the appropriate sentences for the appellant's contempts.
The circumstances of the contempts are set out above. The contempts, considered as a whole, constitute a sustained and persistent defiance of the authority of the Family Court of Western Australia during a period beginning on 27 November 2017 and ending on 15 October 2020. In other words, there was a protracted series of contempts over a three-year period rather than a one-off contravention of an order. The conduct constituting the contempts was directed towards frustrating the respondent's application for property orders. It was clearly designed to ensure that any exercise of the court's powers in relation to the property would be rendered futile. The appellant, a former partner in an accounting firm, used false entries on bank records to attempt to obfuscate and confuse any person attempting to trace funds, and to mislead the compliance section of financial institutions that had been served with relevant orders. He also involved relatives in his deception.
The conduct the subject of counts 1 ‑ 12 - withdrawing funds from the NAB Account and mortgaging the Ocean Beach property - had the effect of reducing the value of the assets of the VW Super Fund and the LMN Investment Trust respectively. The sale of the Denmark property (count 13) appears to have had the effect of removing from the asset pool one of the few assets claimed to be held by the appellant standing outside the VW Super Fund.[121] The refusal to pay spousal maintenance from an available source deprived the respondent of income, in a context where the appellant had taken steps to place many of his assets beyond the reach of the court in the VW Super Fund.
[121] Limitations on the court's power to make orders requiring payments from a superannuation fund to a former spouse were discussed in Mackah v Mackah [2017] FamCAFC 62; (2017) 56 Fam LR 516.
The parties informed the court that, subsequent to the primary judge imposing the original sentence, the mortgage on the Ocean Beach property had been discharged by the lender,[122] and money captured in the appellant's solicitor's trust account had been used to reduce the maintenance arrears the subject of count 15 to $56,190.[123] However, those steps have been achieved by the respondent taking steps to enforce orders made in her favour, without the cooperation of the appellant. About $140,000 of the proceeds of the sale of the Denmark property remains unaccounted for.[124]
[122] Appeal ts 30.
[123] Appeal ts 43.
[124] Appeal ts 45.
At the time of publication of these reasons, the appellant has spent just over a year in custody without having taken any steps to attempt to purge his contempts. While the coercive force of a custodial sentence may not yet be spent, given the possibility that the appellant might be awaiting the outcome of this appeal, the prospects of the appellant taking future steps to comply with the orders seem relatively remote. It is appropriate for this court to impose a sentence which is proportionate to the seriousness of the contempts on the assumption that the appellant will not take any steps to purge his contempt. If that assumption proves to be incorrect, then the appellant has the option for applying for an earlier discharge under s 234(7) of the Act.
The appellant's personal circumstances are set out above. There are no significant mitigating factors other than the appellant's prior good character. However, the persistent and sustained nature of the contempts mean that the appellant's conduct cannot be regarded as unusual or out of character.
General deterrence is an important sentencing consideration in this case. Senior counsel for the respondent, a very experienced family law practitioner, indicated (without demur from the appellant's counsel, who is also an experienced family law practitioner) that issues of disclosure and concealment of assets bedevil financial family law cases.[125] The extent of the problem demands a firm response from the courts in order to send a clear deterrent signal to others who might seek to replicate the appellant's conduct.
[125] Appeal ts 55.
Personal deterrence is a sentencing factor of considerable significance in the present case. The primary proceedings are ongoing and only interim property orders have been made. The sentence imposed by this court should bring home to the appellant the seriousness with which the courts regard open defiance of their orders and the consequence of deliberate breach of injunctions and other orders. The appellant should be left with no doubt that further deliberate contraventions will result in condign sanctions, so as to hopefully deter future flagrant breaches of the court's orders.
In sentencing for contempt or other offences, imprisonment is a sentence of last resort. A sentence of immediate imprisonment should be imposed only where other sentencing options (here a fine or sentence of suspended imprisonment) are inappropriate.
In all the circumstances of the present case, the seriousness of the appellant's contempts is such that a fine or suspended sentence of imprisonment are inappropriate sentencing options.
In sentencing the appellant, it is appropriate to first fix an appropriate sentence for each individual charge and then consider questions of cumulation or concurrence which involve considerations of totality.[126]
[126] Pearce [45] - [47].
In our view, the length of the individual terms of immediate imprisonment imposed by the primary judge are proportionate to the appellant's contumacious conduct. On resentencing, we would impose individual sentences of 1 months' immediate imprisonment on each of counts 1 - 10, and 12 months' immediate imprisonment on each of counts 11 ‑ 13 and 15.
In our view, the total sentence which bears a proper relationship to the offending conduct, considered as a whole and having regard to all relevant circumstances (including those personal to the appellant), is 2 years 3 months' immediate imprisonment. We would achieve that outcome by ordering that the sentences for counts 1 - 3, 12 and 13 be served cumulatively with each other, and that the other individual sentences be served concurrently with the sentences for counts 1 - 3, 12 and 13 and with each other.
Orders
For the above reasons, we would make the following orders in the appeal:
1.The appeal is allowed.
2.Order 1 of the orders made by the Family Court of Western Australia on 15 April 2021 is set aside and there is substituted an order sentencing the appellant to 2 years 3 months' immediate imprisonment, to commence from 10 March 2021.
3.The Warrant of Commitment issued pursuant to order 1 of the orders made by the Family Court of Western Australia on 15 April 2021 is cancelled and a new Warrant of Commitment is issued to give effect to order 2 of these orders.
It was common ground at the hearing of the appeal that there should be no order for the costs of the appeal if it was successful.[127]
[127] Appeal ts 57 - 58.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
23 MARCH 2022
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