Strikers Management Pty Ltd Australian Securities Commission v Dimitri

[1998] FCA 55

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3789  of 1996

RE:  

BETWEEN:

STRIKERS MANAGEMENT PTY LIMITED

AUSTRALIAN SECURITIES COMMISSION
Applicant

AND:

PETER DIMITRI
Respondent

JUDGE:	BURCHETT J
DATE:	5 FEBRUARY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is a motion that the respondent be punished for contempt, the contempt being specified in a statement of charge which is in the following terms:  the respondent is guilty of contempt in that in breach of his undertaking given to the court on 2 January 1997 and varied on 13 February 1997 the respondent failed to return to Australia by 27 March 1997.

Mr Dimitri has announced to the court that he pleads guilty to that charge, and that he admits the facts on which it is based.  He proffers some extenuation, particularly by reference to his health.  He suffered, apparently, from stomach ulcers and other associated conditions, which I accept would have caused him considerable discomfort and some incapacity. 

The fact is that Mr Dimitri left Australia at a time when proceedings were pending against him, brought by the Australian Securities Commission in respect of his activities in relation to a company, Strikers Management Pty Limited.  He was permitted to do so upon his giving an undertaking to the court that he would return by a particular date.

The evidence shows that, prior to that date, an application was made that the time be extended.  This was supported by medical grounds.  The court by consent extended the time, as requested, but thereafter a deliberate decision was made by Mr Dimitri that he would not return, either by the extended date, or at all in the foreseeable future.  I accept that all facts found by me in relation to this matter should be found upon proof beyond reasonable doubt and not on the basis of proof at any lesser standard.  The matters I have already recited are matters of which I am so satisfied.

I am satisfied, on this standard also, that the decision to act in breach of the undertaking was a considered decision, and was not forced upon Mr Dimitri by his medical condition.  Indeed, he understood at the time that there was a risk of extradition, and the very fact that he considered the matter of extradition is, I think, significant.  Nevertheless, it may well be that the full implications of his conduct were not completely appreciated.  It is accepted that he has not previously been guilty of any contempt of court, and indeed, the material put before me suggests that he had previously not accumulated anything that could be described as a lengthy criminal record.

He has, however, been found guilty by a magistrate of two offences, for which he is presently serving a sentence of imprisonment.  In respect of his current imprisonment, he will be released on the 22nd of this month, unless the order I am about to make extends that time.  Mr Dimitri asks me to take the view that, had this matter been brought on earlier, any sentence imposed on him for contempt of court would have run concurrently with his present imprisonment.  I do not think that is so, since the offences for which he has been imprisoned are quite distinct offences.

Notwithstanding that, I do think that it is a matter to take into account that any term which I impose will involve an additional period on top of a current term of imprisonment from which he would otherwise, on the evidence, be in a position to look forward to release on the date I have mentioned.  In all the circumstances, I think that the law and the authority of the court will be clearly vindicated if I impose imprisonment for a period of two weeks, and that it would not serve the purposes of the law to impose any further sentence beyond that.

Accordingly, the penalty that I impose for the admitted contempt of court which has occurred is that Mr Dimitri serve a term of two weeks imprisonment to commence immediately at the date fixed for his release from his present imprisonment.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 11 February 1998       

Counsel for the Applicant:	Ms L Muston
Solicitor for the Applicant:	Legal Department of the Australian Securities Commission
Counsel for the Respondent:	)   The Respondent appeared in person
)
Solicitor for the Respondent:	)
Date of Hearing:	5 February 1998
Date of Judgment:	5 February 1998