The Commissioner for Consumer Protection v Armstrong [No 5]

[2015] WASC 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [No 5] [2015] WASC 37

CORAM:   BEECH J

HEARD:   16 JANUARY 2015

DELIVERED          :   6 FEBRUARY 2015

FILE NO/S:   CIV 1611 of 2012

BETWEEN:   THE COMMISSIONER FOR CONSUMER PROTECTION

Plaintiff

AND

FAY MARIE ARMSTRONG
Defendant

Catchwords:

Courts and judges - Contempt of court - Contempt by breaching terms of injunction - Appropriate punishment

Legislation:

Nil

Result:

3 months' imprisonment suspended for 18 months

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M G S Crowley

Defendant:     In person

Solicitors:

Plaintiff:     Department of Commerce

Defendant:     In person

Case(s) referred to in judgment(s):

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372

Commissioner for Consumer Protection v Armstrong [2012] WASC 206

Commissioner for Consumer Protection v Armstrong [No 4] [2015] WASC 8

Dental Board of Australia v Traianou [2011] WASC 293

Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134

Legal Profession Complaints Committee v Love [2014] WASC 389

BEECH J: 

Introduction

1. On 16 January 2015, I published reasons explaining my conclusion that I was satisfied beyond reasonable doubt that the defendant, Ms Armstrong, had committed a contempt of court by disobeying paragraph 3 of the orders made on 22 August 2012 in three respects.[1]

   [1] Commissioner for Consumer Protection v Armstrong [No 4] [2015] WASC 8.

Ms Armstrong's submissions on sentence

1. Ms Armstrong's submissions were not directed to the question of the appropriate penalty for the contempt that I have found she committed.  Rather, her submissions sought to challenge my finding of contempt.

2. Insofar as Ms Armstrong's submissions invited me to reopen my decision on contempt, I declined to do so.[2]  That is because I do not think any power to reopen arose in the circumstances, and if a power had arisen, given the history of this matter I would not have exercised any discretion to permit a further reopening.

   [2] ts 163 - 164.

The Commissioner's submissions

1. The Commissioner's submissions stated that the Commissioner was precluded by the High Court's decision in Barbaro v The Queen[3] from making a submission as to what penalty was appropriate.  I accept that Barbaro precludes a submission as to the length and appropriate range of a term of imprisonment, or as to the amount or appropriate range of a fine.[4]  However, I do not consider that Barbaro prevents a submission as to the appropriate kind of punishment.[5]

   [3] Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372.

   [4] Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 [70] (Cavanough J).

   [5] see Legal Profession Complaints Committee v Love [2014] WASC 389 [72] (Beech, Kenneth Martin & Edelman JJ).

Punishment for contempt of court:  legal principles

1. Principles relevant to the punishment for contempt were explained in Allbeury v Corruption and Crime Commission.[6]  The principles may be summarised in the following way:

   [6] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425, [215] – [218] (Buss JA); see also Dental Board of Australia v Traianou [2011] WASC 293, [39] – [45].

   (1)the determination of the appropriate punishment for contempt is a matter entirely within the discretion of the court. There is no maximum penalty applicable;

   (2)section 6 of the Sentencing Act 1995 (WA) does not apply to the punishment of a person for contempt of court. However, it is established by authority that what is said in that section provides a sound guide in determining the appropriate punishment for contempt. Thus for contempt, as in other spheres, imprisonment is the sentence of last resort;

   (3)matters to be taken into account in considering the punishment for contempt of court by disobeying an order of the court include:

   (a)the nature and seriousness of the contempt proved;

   (b)the contemnor's culpability;

   (c)the effect of the contempt on the administration of justice;

   (d)the reasons or motive for the contempt;

   (e)whether the contemnor has received or tried to receive a benefit from the contempt;

   (f)whether there has been any expression of genuine contrition by the contemnor;

   (g)the character and antecedents of the contemnor;

   (h)the contemnor's personal circumstances;

   (i)personal and general deterrence; and

   (j)the need for denunciation of contemptuous conduct;

   (4)the generally applicable legislative provisions about parole do not apply to a sentence of imprisonment for contempt.  Thus, a contemnor serves the full term of any sentence imposed;

   (5)not all deliberate or wilful breaches of a court order will attract a custodial sentence, but the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court; and

   (6)the breadth of the circumstances giving rise to contempt mean that there is no tariff.

Relevant factors in this case

1. I am satisfied that Ms Armstrong's contempt was a deliberate one.  I have found that she knew of the substance of the terms of the orders of 22 August 2012 (the Orders).  I am satisfied that she knew that what she was doing, in her dealings with Mr and Mrs Brown, was a breach of the Orders.  That explains, in part at least, why she arranged her dealings to take place in a public place, not at a fixed address, and why she took steps to conceal her identity.

2. Ms Armstrong's culpability, in engaging in the conduct the subject of this contempt, is magnified by the circumstance that she had previously engaged in conduct of a substantially similar nature on a number of previous occasions in breach of an enforceable undertaking.[7]

   [7] See Commissioner for Consumer Protection v Armstrong [2012] WASC 206.

3. The appropriate punishment for contempt must take account of the need to personally deter Ms Armstrong from continuing with such conduct.  Ms Armstrong has previously breached undertakings given to the plaintiff, and concealed her identity in the course of doing so.[8]

   [8] Commissioner for Consumer Protection v Armstrong [2012] WASC 206.

4. Ms Armstrong has profited from her contempt, in that she obtained $450 from Mr and Mrs Brown.  She has not expressed any remorse in relation to her conduct.  On the contrary, when she was contacted by the complainant Mrs Brown, Ms Armstrong tried to blame Mrs Brown for the illness of the animal.[9]  She continues to deny that she engaged in the conduct by which she breached the Orders.

   [9] Affidavit of Michelle Louise Brown affirmed 15 August 2013 [30].

5. There is no direct evidence as to Ms Armstrong's financial position.  She has not paid at least two of the complainants in relation to the transactions referred to in my reasons of 19 May 2014.[10]  She has not paid the costs to the Commissioner as ordered or a fine imposed by the Magistrate's Court.[11]

   [10] Affidavit of Veronica  Anne Pakieto affirmed 28 May 2014; affidavit of Alyce Kym Michelle Utting  affirmed 28 May 2014.

   [11] Supplementary Affidavit of Karen La affirmed 24 July 2014 [14] ‑ [15], [19].

The appropriate disposition

1. In my view, the appropriate punishment is a suspended order for imprisonment.

2. I do not consider that a fine would reflect the serious and deliberate nature of the contemptuous conduct in the context of the history of Ms Armstrong's previous conduct.  Moreover, given that Ms Armstrong has not met any of the payment obligations imposed by fines, costs orders or compensation orders, it seems to me that imposing a fine would be futile.

3. The seriousness of a suspended sentence is reflected in its penultimate position in the hierarchy of sentencing dispositions.  A term of suspended imprisonment will serve the important object of personal deterrence.  If Ms Armstrong breaches the Orders during the period of suspension, she will be required to serve the suspended term of imprisonment, as well as face additional punishment for that further breach.

Orders

1. For these reasons I would order that:

   (1)Ms Armstrong be committed to prison for 3 months for her contempt;

   (2)execution of her committal be suspended for a period of 18 months, subject to her compliance with the Orders during that period; and

   (3)Ms Armstrong pay the Commissioner's costs of the application.