Al Muderis v Duncan [2019] NSWSC 461 | Case summary

Supreme Court of NSW|2018-06-14|Before: Rothman J, Gibbs CJ, Deane JJ

Solicitor: Ms Claudette Chua (First Defendant) No appearance (Second Defendant) File Number(s): 2016/276179

Judgment

HIS HONOUR: On 14 June 2018, the Court, as presently constituted, determined that the second defendant in the substantive proceedings and the contemnor in the charges of contempt was guilty of contempt. In relation to Counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge, the second defendant/contemnor was found guilty of criminal and civil contempt: Al Muderis v Duncan (No 4) [2018] NSWSC 925 (hereinafter "the Judgment on Guilt").
Further, the Judgment on Guilt found the contemnor guilty of civil contempt in relation to Counts 4, 5 10 and 11 of the Statement of Charge. Permanent injunctions have issued in or to the same effect as the previous interrogatory injunctions.
Following the Judgment on Guilt, the Court gave each of the parties another opportunity to be heard on an appropriate penalty. The prosecutor filed submissions in accordance with the directions of the Court.
The contemnor filed no submissions and did not take advantage of the opportunity to provide submissions or any material mitigating the penalty. The Court is required to impose a penalty.

Principles on Sentencing for Contempt

The Court possesses the power to impose a penalty for contempt. That power, and the jurisdiction to deal with contempt, is part of the inherent powers of a superior court of record. Notwithstanding the Court's inherent power, the punishment for contempt is dealt with by the Supreme Court Rules 1970 (NSW) and, in particular, Part 55 thereof. Part 55, Rule 13 is in the following terms: "(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional Centre or fine or both. … (2) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor give security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security."
As is clear from the Judgment on Guilt, there are historically two types of contempt: civil and criminal contempt. Civil contempt is, in essence, breach of a court order or undertaking. Criminal contempt is conduct that obstructs the administration of justice. Notwithstanding the foregoing distinction, a contumacious breach of a court order or undertaking may amount to criminal contempt, if it obstructs the administration of justice.
Punishment for each type of contempt serves certain purposes, as was discussed by the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46. In that case, Gibbs CJ, Mason, Wilson and Deane JJ, described the distinction at [106] as: "(a) enforcement of the process and orders of the court, disobedience to which has been described as 'civil contempt'; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have been described as 'criminal contempt'."
Historically, the penalty imposed for civil contempt was intended to be coercive and ensure that the contemnor abided by the orders of the Court. It was not intended to be punitive, at least not significantly so: Mudginberri, supra.
Where a breach of a court order or undertaking that would otherwise amount to civil contempt is deliberate or contumacious, it is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3. In Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, Beazley JA (as her Honour then was) found that contumacious, wilful and deliberate disobedience of a court order may be characterised as both civil and criminal contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway .
When a Court is punishing for wilful disobedience of a Court order, the purpose of the punishment is to discipline the offender and vindicate the authority of the Court: Mudginberri. The foregoing issues were discussed in the Judgment on Guilt at [45]-[49].
Further, the Court in the Judgment on Guilt discussed the process of sentencing at [51]-[56] in the Judgment on Guilt. In that judgment the Court, as presently constituted, also determined each of the charges and whether guilt of the charge amounted to criminal or civil contempt (or both).
The conduct of the contemnor, described in each of the charges, amounts to a serious undermining of the authority of the Court and an impediment to the administration of justice. The conduct is described under each of the headings relating to the statement of charge.
Punishment for contempt, which is a common law offence, entitles the Court to deal with all of the penalties available for any criminal offence, including imprisonment and the imposition of a fine. Further, the Court may impose punishment on terms and, as discussed in the Judgment on Guilt, may suspend, part suspend, or impose conditions on a sentence of imprisonment or the staying of a sentence of imprisonment.

Consideration of Sentence

As stated in the Judgment on Guilt, and as is trite, sentencing is a process of intuitive synthesis, in which the sentencing judge imposes a sentence that is appropriate to the gravity of the offence that was committed and the circumstances of the offender who committed it. In so doing, a Court evaluates the conduct and the offence in question as fitting within a range of conduct that could amount to such an offence. In so doing, the Court assesses the objective seriousness of the offence in question.
The Crimes (Sentencing Procedure) Act 1999 (NSW) applies to every offender being sentenced for any New South Wales offence, including the common law offence of contempt. The Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the purposes of sentencing in terms similar to those established by the common law.
The factors involved in the assessment of an appropriate sentence include: punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and Veen v Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14.
As the Crimes (Sentencing Procedure) Act 1999 (NSW) applies, the Court is required to have regard to the provisions of s 21A of the aforesaid Act, which sets out factors that are mitigating and aggravating circumstances in the setting of a sentence. Those matters are to be taken into account, except when the nature of the offence already includes such a factor or where the principles on sentencing would otherwise prohibit it.
Further, the Court must assess, if evidence is available, the subjective circumstances of the offender. The intuitive synthesis, to which these reasons have earlier referred, involves the consideration of each of the objective seriousness and subjective circumstances to arrive at a result which will best achieve the purposes of sentencing that inform the Court's exercise of discretion.
As earlier stated, the Court has available a wide range of sentences that it may impose for contempt: NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118. Those sentences include: imprisonment; periodic detention; home detention; intensive correction orders; community service orders; good behaviour bond; dismissal of the charge (whether accompanied by a good behaviour bond or a condition that the offender participate in an intervention program or not); deferral of sentence; a suspended sentence; a fine; and the making of non-association or place restriction orders.
The Court may impose a combination of the foregoing. I refer, in particular, to the comments in the Judgment on Guilt at [56] which, in turn, relied upon the judgment of Garling J and was in the following terms: "[56] This Court, in Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431 (per Garling J) made clear that in determining the sentence to be imposed, the Court is to consider the nature of the contempt committed and the degree to which the contemptuous conduct is egregious. The circumstances to which Garling J referred in the foregoing judgment include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender's culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed; whether an apology has been proffered; and the financial and personal circumstances of the offender, particularly when a fine is being sought: see also Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.
The foregoing factors are not, as Garling J made clear, intended to be prescriptive or exhaustive. Nevertheless, the continuing recalcitrance of the contemnor and the egregious nature of his conduct makes specific and general deterrence loom large; as does the impact of the contempts on the administration of justice and the offender's culpability for the conduct.
The offender has shown no contrition or remorse. He has defied authority with every statement, every further publication or the refusal to withdraw publications and has "snubbed his nose" at the Prosecutor and the Court. The contemnor requires condign punishment for the criminal contempts and significant punishment for the civil contempts.

Imposition of a Sentence

Ordinarily a sentence for criminal contempt should not be passed (or altered) in the absence of the contemnor: by analogy see Lawrence v The Queen [1933] AC 699. Nevertheless, the Court may pass sentence on an absent offender, where, by his conduct, the offender has voluntarily absented himself: R v McHardie [1983] 2 NSWLR 733; (1983) 10 A CRIM R 51.
The provisions of s 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW) restrict the Local Court (and, on appeal, the District Court), but, expressly, does not limit the power that any other Court may have to deal with an offender.
The absence of the contemnor creates some practical issues. If a sentence of imprisonment were to be imposed, from what date does it commence?
The provisions of s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allow a Court to commence a sentence before the date on which it is imposed. However, the Court may not impose a sentence to commence on a date after the date on which it is imposed, unless it is being served or to be served consecutively (or partly consecutively) with some other sentence of imprisonment.
It may well be that the Court, in sentencing an absent contemnor for criminal contempt, may have the power to impose a sentence that commences on the date on which the contemnor is arrested following the issuing of a bench warrant. However, the issuing of a bench warrant would allow a contemnor to be arrested, indeed require the contemnor to be arrested, and would set in train the process of law pursuant to which he might lawfully be sentenced to imprisonment: Culleton (No 2) (2017) 91 ALJR 311 at [36].
The issue of whether to impose a sentence of imprisonment is one that needs to be determined. In my view, the contempt arising from the conduct described in each of the counts that gave rise to criminal contempt is extremely serious. As earlier stated, it discloses a deliberate defiance of the authority of the Court. In the circumstances, a sentence of imprisonment is warranted for each of the charges.
Nevertheless, the charges involve the one course of conduct, albeit with separate actions and separate criminality. Were each of the charges before the Court individually and if the Court, in those circumstances, were minded to impose a sentence of imprisonment, the Court indicates that it would impose a sentence of nine months' imprisonment for each such charge
Given the principles of totality, which the Court implements in imposing a sentence, it is appropriate that there be a significant level of concurrence and some level of accumulation. In the circumstances, it is appropriate to fix a sentence of imprisonment that is an aggregate sentence covering each of Counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge, being those Counts of criminal contempt on which the contemnor has been found guilty. The aggregate sentence that will be imposed is a sentence of two years' imprisonment, with a non-parole period of 18 months' imprisonment.
For the civil contempt, being the guilt in relation to Counts 4, 5, 10 and 11 of the Statement of Charge, I would indicate that an appropriate penalty is a fine and an appropriate fine for each of those Counts would be $25,000 each. Again, implementing the principle of totality, I set an overall penalty or an aggregate penalty of a fine for all of Counts 4, 5, 10 and 11 of the Statement of Charge of $40,000.
On the foregoing basis, the Court makes the following orders: 1. In relation to Counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge in these proceedings, a conviction for criminal contempt is recorded in relation to each such Count; 2. A bench warrant for the arrest of Gerardo Mazzella (aka Gerard Duncan) shall issue for the arrest of the aforesaid Gerardo Mazzella (aka Gerard Duncan) to be detained and removed, as soon as practicable, to the Supreme Court for sentence; 3. The Court imposes a fine of $40,000 on the aforesaid Gerardo Mazzella (aka Gerard Duncan), payable forthwith; 4. The second defendant/contemnor, Gerardo Mazzella (aka Gerard Duncan), shall pay the Prosecutor's/Plaintiff's costs of and incidental to the contempt proceedings, including proceedings on sentence, on an indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2019

As the Crimes (Sentencing Procedure) Act 1999(NSW)

Al Muderis v Duncan

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