Sentencing considerations
43As noted at para [3] above, the parties' submissions assumed that the Crimes (Sentencing Procedure) Act 1999 applies. I proceed accordingly, without deciding the question.
44Pursuant to s 5(1) a sentence of imprisonment is a sentence of last resort. It is only to be imposed if no other penalty is appropriate. ASIC did not submit that a sentence of imprisonment was appropriate for the contempts of which Mr Sigalla is guilty. Section 21A(2) requires the court to take account of any aggravating factors referred to in that subsection. None of the aggravating factors listed in s 21A(2) is present in the present case.
45Section 21A(3) lists mitigating factors that are to be taken into account in determining the appropriate sentence for an offence. The subsection provides:
" 21A Aggravating, mitigating and other factors in sentencing
...
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23). "
46The factors in paras (a), (b), (e), (f) and (h) are all mitigating factors that I take into account.
47I have not included in such factors those listed in paras (g), (i) or (k). As to paragraph (g), if a similar situation arose in the future, I could not predict whether or not Mr Sigalla would act in the same way. I am not in a position to make an affirmative finding that he was unlikely to reoffend. As to para (i) Mr Sigalla has expressed remorse. He deposed:
" In respect of those bank statements that I have failed to produce, and the JP Morgan credit card account that I failed to disclose, I accept that there is no excuse for my non-compliance with the court's orders. To the extent that I did have paper statements, I could have complied with the orders by obtaining statements electronically or contacting the relevant bank - in person or over the phone. I accept that I should have done this and that it was reckless and bloody-minded of me not to take these steps. I accept that it was especially unjustified for me not to disclose the existence of the JP Morgan Credit Card, and, consistent with that, not to produce statements for the JP Morgan Credit Card until after the relevant deadlines. "
48I am not persuaded that this statement of contrition is genuine. If it were genuine, I would expect Mr Sigalla to have indicated through his counsel well before final submissions that he acknowledged that he was guilty of the contempts charged.
49Section 22 of the Crimes (Sentencing Procedure) Act requires the court to take into account a plea of guilty where such a plea has been made. I regard the acknowledgement given by Mr Sigalla through his counsel in the course of counsel's final submissions that the charges with which I am now dealing had been established as being in substance pleas of guilty to those charges. I take those pleas into account. However, having regard to the lateness of the pleas, I do not think that they are a relevant mitigating factor that warrant the imposition of a lesser penalty.
50In Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185, Dunford J referred to a number of factors relevant to the proper punishment for a contempt of court. These included:
" 1. the seriousness of the contempt proved;
2. whether the contemnor was aware of the consequences to himself of what he did;
3. the actual consequences of the contempt on the relevant trial or inquiry;
4. whether the contempt was committed in the context of serious crime;
5. the reason for the contempt;
6. whether the contemnor has received any benefit by indicating an intention to give evidence;
7. whether there has been any apology or public expression of contrition;
8. the character and antecedents of the contemnor;
9. general and personal deterrence; and
10. denunciation of the contempt. "
51There was no dispute that each of the charges of contempt should be treated as charging separate offences containing separate elements, albeit that there were common elements. It is necessary to fix an appropriate sentence in respect of each charge and then to consider questions of cumulation, concurrence and totality ( Pearce v R (1998) 194 CLR 610 at [45]).
52Whilst every contempt of court is serious, with the exception of the charge in paragraph 41 of the further amended interlocutory process, the contempts proved in the present case are at the lower end of the scale.
53No criminal sanction is required to punish Mr Sigalla for the contempts the subject of the charges in paras 34, 35, 37, 38 or 40 of the further amended interlocutory process. A costs order would have been an appropriate and sufficient sanction in respect of those charges. In the case of those charges, there was substantial, although late, compliance with the court's orders. To the extent there was non-compliance with the orders, it was explained by Mr Sigalla's not having in his physical custody the documents that were required to be produced. He admitted that he could and should have obtained documents that were required to be produced by other means, but did not do so. Whilst his failure to do so was serious, no real harm was occasioned by the breach of the court's orders. The authority of the court would be sufficiently maintained and the contempt denounced by the making of findings of contempt and costs orders.
54The charges concerning the JP Morgan Chase bank account and credit card are in a different position. In the case of the credit card Mr Sigalla has admitted that he knew that he was required to disclose the existence of the credit card and to provide the credit card statements. His failure to do so was deliberate. I have also found that his motive in not doing so was in part his desire not to reveal his use of the credit card. I have found that his failure to produce the whole of the JP Morgan Chase bank statements was motivated by his wish not to produce the copy of the cheque for the payment of school fees.
55Other factors relevant to sentencing are the pressures under which Mr Sigalla laboured at relevant times, the effect of these proceedings on him and his family, his otherwise good character, and the absence of prior convictions. During the periods Mr Sigalla was required to comply with the court's orders he was heavily engaged in the litigation with ASIC and with TZ Limited. That is a mitigating factor in respect of his delay in complying with the court's orders. It is not a mitigating factor in respect of his failure to comply with the court's orders in respect of the JP Morgan Chase credit card or his failure fully to comply with the court's orders in respect of production of bank statements for his JP Morgan Chase bank account.
56These proceedings have attracted media scrutiny that has caused considerable distress to Mr Sigalla and his family. I have had regard to the character references that have been provided that speak not only of Mr Sigalla's character, but of the effect of these proceedings on his family. To give further detail would only exacerbate that distress. I take this into account as a significant mitigating factor.
57I accept that apart from these proceedings Mr Sigalla is a generous person of good character. His generosity is attested to not only by the character references that were provided, but by his assistance to Mr Reynolds that provided the background to the first charge that has been dismissed ( ASIC v Sigalla (No. 4) ).
58Mr Sigalla has no previous convictions. He had been convicted of a charge of contempt in which Austin J found that he had intentionally caused ZMS Pty Limited to contravene freezing orders ( TZ Limited v ZMS Pty Limited [2009] NSWSC 1465 at [29]-[30]). The finding was set aside on appeal on 4 November 2011 ( Sigalla v TZ Limited [2011] NSWCA 334).
59To return to the factors summarised in Wood v Staunton (No. 5) , I am satisfied that Mr Sigalla was aware that he would be in contempt of court by failing to comply with the orders and that this could have adverse consequences to himself. (TZ Limited filed a notice of motion against ZMS Pty Limited and Mr Sigalla on 27 November 2009 alleging that they were in contempt of court in relation to the sale of a property said to be contrary to freezing orders made on the application of TZ Limited. Mr Sigalla was well aware of the consequences of non-compliance with court orders.)
60The consequences of the non-compliance with the court's orders was that ASIC's investigations were delayed. However, the delay was not substantial. ASIC obtained the information that Mr Sigalla was required to provide from other sources.
61The contempts were committed in the context of proceedings brought by ASIC for preservation orders under s 1323 of the Corporations Act 2001 (Cth). As ASIC submitted, those proceedings were brought for the benefit of TZ Limited which commenced proceedings against Mr Sigalla seeking to recover moneys allegedly misappropriated by him. TZ Limited had obtained its own orders to restrain Mr Sigalla from dealing with his assets. I have been advised that the proceedings brought by TZ Limited against Mr Sigalla have been compromised. I do not know on what terms. Mr Sigalla is presently bankrupt. I have no information with which to assess the merits of the allegations made against Mr Sigalla that led to the commencement of the proceedings by ASIC under s 1323 of the Corporations Act .
62The reasons or motives for the contempts are various. In so far as the contempts concerned the delay in complying with the court's orders, I would primarily attribute them to the pressures of the various pieces of litigation that Mr Sigalla faced. In relation to the incomplete production of bank statements for the JP Morgan Chase bank account, and in relation to the non-production of statements in relation to the JP Morgan Chase credit card account and the failure to disclose the existence of the credit card, Mr Sigalla was motivated by his desire not to make full disclosure to ASIC. His reason for not disclosing the JP Morgan Chase credit card was partly to protect his wife and family. But it was also partly to conceal transactions on the credit card that Mr Sigalla did not want ASIC to investigate.
63Mr Sigalla obtained no monetary benefit or gain from the contempts. I have found that there has not been a genuine expression of contrition. Mr Sigalla is otherwise a person of good character and has no prior convictions.
64Counsel for Mr Sigalla submitted that an appropriate penalty was a good behaviour bond, or, alternatively, a fine with payment conditions that made due allowance for the fact that he is currently a bankrupt. It was common ground that all potential penalties that could be imposed for a crime pursuant to the Crimes (Sentencing Procedure) Act 1999 were potential penalties ( Registrar, Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [25]). The fact that Mr Sigalla is a bankrupt does not mean that a fine could not be an appropriate penalty ( Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17 at [54]).
65Counsel for Mr Sigalla submitted that Mr Sigalla's contempts in these proceedings were less culpable than the conduct of which he was found guilty in the TZ proceedings where a fine of $5,000 was imposed. Counsel submitted that this indicated that an appropriate penalty was either a lesser fine, or the imposition of a good behaviour bond.
66In TZ Limited v ZMS Investments Pty Limited [2009] NSWSC 1465 Mr Sigalla was found guilty of contempt as a result of ZMS Investments Pty Ltd's having entered into a contract for the sale of a property at Ingleburn when it was subject to a restraint against its selling or otherwise dealing with or disposing of any of its assets. Austin J found that by giving instructions for the exchange of contracts, Mr Sigalla, as agent for ZMS Investments, intentionally and knowingly caused ZMS Investments to contravene the freezing order by selling an asset of ZMS Investments (at [29]). His Honour also found that Mr Sigalla at that time knew when he issued the instructions to exchange that this was in breach of the order (at [29]). Austin J imposed a fine on ZMS Investments and a separate fine on Mr Sigalla for his involvement in ZMS Investments' contravention of the order. The fine imposed upon each of ZMS Investments and Mr Sigalla was $5,000 (at [53]).
67On appeal ( Sigalla v TZ Limited [2011] NSWCA 334) these orders were set aside, although the order that Mr Sigalla and ZMS pay the costs of the application on the indemnity basis was not disturbed. The costs were a matter of agreement between the parties (at [29]).
68The appeal by Mr Sigalla was allowed partly on the basis that the primary judge had dealt with the position of Mr Sigalla not as a principal to a separate contempt, but as an accessary to a contempt by ZMS Investments (at [23]), and partly on the basis that the primary judge had not applied a standard of proof beyond reasonable doubt and had drawn inferences in accordance with the civil standard of proof rather than the criminal standard of proof (at [25]-[28]). In the Court of Appeal Young JA observed (at [28]) that the primary judge had not directed himself to the question of whether the prosecutor had proved beyond reasonable doubt that Mr Sigalla had intended to prevent or impede the purpose of the injunction and in this respect, had not addressed the question of whether Mr Sigalla had the necessary mens rea by not addressing the question whether he had an honest but mistaken belief as to the meaning or operation of the injunction. In reaching that conclusion the Court of Appeal did not refer to Austin J's finding at [29], referred to at [66] above.
69Because Mr Sigalla's conviction was set aside, and because (according to the Court of Appeal) Austin J did not address the question of whether Mr Sigalla had an honest but mistaken belief as to the meaning or operation of the injunction which, if correct, would mean that his conduct would not be an interference with its operation, I do not consider that Austin J's finding that a fine of $5,000 was an appropriate penalty for the breach his Honour did find, is of any assistance. Had his Honour found that Mr Sigalla had intentionally interfered with the operation of the injunction against ZMS Investments with the necessary mens rea , in my view a penalty of $5,000 would have been manifestly inadequate.
70Pursuant to its inherent jurisdiction the court can punish the contempts not only by fine or imprisonment but by any of the sentencing options available in respect of a person convicted of a criminal offence pursuant to the Crimes (Sentencing Procedure) Act 1999 ( Registrar, Court of Appeal v Maniam (No. 2) at 318-319; NCR Australia Pty Ltd v Credit Connection Pty Ltd at [20]-[26]).
71I do not consider that either a good behaviour bond or a fine would be a sufficient penalty to express the court's denunciation of the contempts in relation to the incomplete production of the JP Morgan Chase bank account, the non-disclosure of the JP Morgan Chase credit card in Mr Sigalla's affidavit, and the non-production of the account statements for that credit card. Nor would such a punishment be an appropriate general deterrent.
72Mr Sigalla offered an undertaking that if a fine were imposed, he would bear the burden of the fine from his own resources, when he had resources available to him, and not have recourse to the resources of others, such as his father-in-law. I do not know how such an undertaking could be supervised or enforced. But irrespective of that, I do not think that a fine, let alone a good behaviour bond, would adequately deal with the case where there was a deliberate breach of the court orders, and where I have found that part of Mr Sigalla's motive in breaching the court orders was to conceal matters from ASIC, not only to protect Mr Sigalla's wife and family, but to protect himself.
73In accordance with Pearce , it is necessary to consider the appropriate penalty for each charge and then to consider questions of cumulation, concurrence and totality. For the reasons I have given, I do not consider that any criminal penalty is appropriate in respect of the charges in paragraphs 34, 35, 37, 38, or 40 (other than in relation tot he JP Morgan account) of the further amended interlocutory process.
74Section 86 of the Crimes (Sentencing Procedure) Act 1999 provides:
" 86 Suitability of offender for community service work
(1) A community service order may not be made with respect to an offender unless the court is satisfied:
(a) that the offender is a suitable person for community service work, and
(b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and
(c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and
(d) that community service work can be provided in accordance with those arrangements, and
(e) (Repealed)
(2) In deciding whether or not to make a community service order, the court must have regard to:
(a) the contents of an assessment report on the offender, and
(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.
(3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report.
(4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work.
(5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender's obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate. "
75Mr Sigalla has been assessed as being suitable for community service work. I have regard to the contents of the assessment report of Mr Miles of the Probate and Parole Service. The report states that Mr Sigalla has signed an undertaking required by s 86(5). I am satisfied of each of the matters in s 86(1).
76In relation to the charge in paragraph 33 (concerning incomplete production of the bank statements for the JP Morgan Chase account), the appropriate punishment is a community service order. In relation to that charge, I determine that Mr Sigalla ought to perform 40 hours of community service work.
77Paragraph 36 of the further amended interlocutory process concerns Mr Sigalla's failure to produce copies of bank statements for the JP Morgan Chase credit card by 4 December 2009. Paragraph 39 concerns his failure to produce subsequent bank statements for that credit card. There was belated production. The more serious charge is paragraph 41 that Mr Sigalla failed to disclose the JP Morgan Chase credit card in his affidavit sworn on 4 December 2009 in purported compliance with order 5(a) made on 30 November 2009. Mr Sigalla was not charged with perjury in relation to that affidavit. But he was required to disclose all of his accounts with financial institutions. He deposed that pursuant to order 5(a) he set out the name of any financial institution of which there was an account in his name. He referred to various credit card accounts, but not the JP Morgan Chase credit card account. The false swearing of the affidavit goes beyond the non-production of the credit card statements.
78Notwithstanding that ASIC did not seek punishment by way of imprisonment, I have considered whether I should impose a term of imprisonment for Mr Sigalla's failure to disclose the existence of the credit card in his affidavit. Having regard to the subjective factors referred to earlier in these reasons, namely Mr Sigalla's good character, the distress that the proceedings have caused his family and thereby indirectly to him from media publicity, and to his being subject to the pressures of litigation, including having to defend ASIC's interlocutory process that has been largely unsuccessful, I have concluded that a term of imprisonment is not warranted. In relation to the charge in paragraph 41 of the further amended interlocutory process the appropriate penalty is that Mr Sigalla perform community service work for 100 hours.
79If the charges in paragraphs 36 and 39 of the further amended interlocutory process were considered in isolation, I would impose a penalty of 60 hours of community service in relation to the contempts charged. However, given their close connection with the charge in paragraph 41, the penalty of 60 hours of community service for those contempts should be served wholly concurrently with the 100 hours of community service to be served for the contempt charged in paragraph 41.
80The question then is whether, having regard to principles of totality, the 40 hours of community service in respect of the charge in paragraph 33 of the further amended interlocutory process (concerning the JP Morgan Chase bank account) should be served concurrently or partly concurrently with the 100 hours in respect of the charges alleged in paragraphs 36, 39 and 41. The breaches were different. It is necessary to look at the totality of Mr Sigalla's behaviour and to ask what is the appropriate sentence for all of the contempts, rather than merely to aggregate the sentences ( Mill v R (1988) 166 CLR 59 at 63, citing Thomas, Principles of Sentencing , 2 nd ed (1979) pp 56-57). Applying that approach I consider that the appropriate order is that Mr Sigalla perform 120 hours of community service.
81A further question raised was whether I should proceed by making a community service order but not entering a conviction. Mr Botsman, who appeared for Mr Sigalla, submitted that that course had been taken in Registrar, Court of Appeal v Maniam (No. 2) at 319 and by Campbell J in NCR Australia Pty Ltd v Credit Connection Pty Ltd .
82In Maniam the Court of Appeal had previously made a declaration that the opponent was guilty of contempt of court (at 310). In NCR Australia Pty Ltd v Credit Connection Pty Ltd the defendant pleaded guilty to charges of contempt in breaching a Mareva order. The orders did not include an order in substance that the defendant was convicted of the contempts charged. By contrast in Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd & Ors [2009] NSWSC 959 the court's orders included an order that " the court convicts [the defendant] and orders that he carry out 100 hours of unpaid community service ". Mr Botsman submitted that a community service order could be made without entering a conviction. The reason Mr Sigalla sought that no conviction be recorded was that the recording of a conviction would be a matter that the United States Government could take into account adversely to Mr Sigalla on his applying for a visa for entry to the United States.
83In my view that is an irrelevant consideration to what orders should be made. Mr Sigalla has been found guilty of eight charges of contempt of court which are civil contempts.
84For the reasons in ASIC v Sigalla (No. 4) I do not consider that the civil contempts of which Mr Sigalla is guilty are offences (although the proceedings in which he has been found guilty are proceedings for an offence because they included charges of criminal contempt). However, the court has all the powers of punishment as if they were offences. In ASIC v Sigalla (No. 4) I made a finding that Mr Sigalla is guilty of contempt of court in respect of each of the charges the subject of paragraphs 33-41 of the further amended interlocutory process (at [195]). Because the contempts of which Mr Sigalla is guilty are civil contempts the appropriate language is that of declaration of his guilt rather than conviction of an offence. What use the United States Government makes of the declaration is a matter entirely for it.
85If the only contempts with which Mr Sigalla had been charged were those of which he was found guilty, I would also have ordered that he pay ASIC's costs on the indemnity basis. I deal with questions of costs in a separate judgment ( ASIC v Sigalla (No. 6) [2012] NSWSC 83). Because ASIC was unsuccessful in respect of the majority of charges, I have ordered it to pay 75 per cent of Mr Sigalla's costs. In reaching that conclusion I have taken into account that Mr Sigalla should bear ASIC's costs of the charges on which he has been found guilty on the indemnity basis. This reduces the costs I would otherwise have ordered ASIC to pay. In reaching my decision as to the period of community service Mr Sigalla should perform, I have taken into account that as a matter of substance he is to bear the burden of costs of the charges of which he has been found guilty.
86For these reasons I make the following declaration and orders:
- Declare that the first defendant, Mr Andrew Sigalla, is guilty of contempt of court in respect of each of the charges the subject of paragraphs 33-41 of the further amended interlocutory process.
- Order that Mr Sigalla perform 120 hours of community service.
- Direct that Mr Sigalla report to the NSW Probation and Parole Service at its city district office within 14 days.
87Pursuant to s 92 of the Crimes (Sentencing Procedure) Act I explain to Mr Sigalla that he is obliged to report to the NSW Probation and Parole Service within 14 days and thereafter do all that is required of him to perform the hours of community service to which he is being sentenced in accordance with the directions of the Probate and Parole Service. If Mr Sigalla refuses to sign such an undertaking or fails to carry out the hours of community service that have been ordered, the community service order may be revoked and he may be resentenced.
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Decision last updated: 28 February 2012