ASIC v Sigalla

Extent of the breaches: paragraph 33 (JP Morgan bank account) 12The first charge on which Mr Sigalla has been found guilty is in having failed to produce to ASIC by 4pm on 4 December 2009 a complete copy of his bank statements for his JP Morgan account for the period from 26 August to 30 November 2009. 13Mr Sigalla deposed that he was aware of the orders because he was in court on the day the orders were made. Prior to the orders of 30 November 2009, Mr Sigalla was required by the orders of 16 September 2009 to provide his bank statements for his bank account with JP Morgan Chase for the period from 1 June 2009 to 16 September 2009. As recorded in my reasons in ASIC v Sigalla (No. 2) [2010] NSWSC 792 at [39]-[42], Mr Sigalla had offered to provide to ASIC all bank statements that ASIC required in respect of his JP Morgan Chase bank account in lieu of his signing a letter that ASIC had purportedly required him to sign pursuant to s 19(2)(a) of the Australian Securities and Investments Commission Act 2001 (Cth) ("the ASIC Act ") authorising JP Morgan Chase to provide ASIC with every assistance in relation to accounts held by it over which Mr Sigalla had authority or control. By his solicitor's letter of 20 October 2009, parts of which were quoted at para [41] of my reasons in ASIC v Sigalla (No. 2), Mr Sigalla offered to provide bank statements or other documents as reasonably requested in relation to the JP Morgan Chase account. On 6 November 2009 Mr Sigalla's then solicitor, Mr Ward, sent to ASIC copies of part of the bank statements issued by JP Morgan Chase to Mr Sigalla for periods including the period from 21 August 2009 to 21 September 2009 and for the month from 22 September 2009 to 21 October 2009. He also sent copies of earlier bank statements from JP Morgan Chase. In relation to the monthly statements from 21 August 2009 to 21 September 2009 and from 22 September 2009 to 21 October 2009 Mr Ward sent three pages for each month. These were shown as pages 1, 2 and 3 of 6. 14On 4 December 2009 Mr Ward on behalf of Mr Sigalla provided further bank statements to ASIC, but these did not include further statements in relation to the JP Morgan Chase bank account. Hence, Mr Sigalla was in breach of order 6(d) of 30 November 2009 that required him by 4 December 2009 to provide to ASIC a copy of the bank statements for the period from 26 August to 30 November 2009. There were two relevant breaches. One was the failure to provide any bank statements for any period after 21 October 2009. The second was that the statements provided were incomplete. 15On 10 November 2009 ASIC wrote to Mr Ward noting, amongst other things, that the statements provided were incomplete in that only three pages of each statement were furnished. ASIC asked for the missing pages to be provided immediately. Mr Ward replied on 19 November 2009. He said: " The bank statements provided were direct downloads from an online access our client has to that account. We are instructed there has been no removal, redaction or other alteration to the documents. The remaining parts of the statement are promotional and other content that does not address either balance or the credit status of the account. Our client is seeking to obtain hard copy editions of bank statements which are mailed to him at his New York address and will provide those to you once they are received by him in Australia. " 16On 20 November 2009 ASIC requested assistance from the United States Securities and Exchange Commission ("the SEC") pursuant to a memorandum of understanding between Australia and the United States of America to obtain banking records from JP Morgan Chase. The SEC issued a subpoena to JP Morgan Chase. On 8 January 2010 ASIC received a bundle of documents from the SEC including monthly bank statements for the account up to 21 September 2009. This included all six pages of the bank statements for the month from 21 August to 21 September 2009. Page 4 included a photocopy of cheques that had been presented during that period, including a cheque signed by Mr Sigalla for $31,833.58 made payable to the Convent of the Sacred Heart for school fees. 17The bank statement Mr Sigalla had provided under cover of Mr Ward's email of 6 November 2009 included a statement showing the payment of a cheque of $31,833.58, but not the payee of the cheque. The full bank statement included a copy of that cheque. The cheque was drawn by Mr Sigalla on 13 August 2009 and paid on 26 August 2009. 18As noted in my reasons in ASIC v Sigalla (No. 4) (at [169]) Mr Sigalla had sworn an affidavit on 8 September 2009 deposing that his children were due to recommence school in New York and it was necessary for him to pay school fees immediately so as to allow them to do so. As noted at [173], there were further school fees payable. The page showing a copy of the cheques paid from the account that was omitted from the bank statements provided under cover of Mr Ward's email of 6 November 2009 was clearly relevant to a matter which was in issue between Mr Sigalla and ASIC in respect of which, as Mr Sigalla must have known, ASIC had been provided with incomplete information. 19In an affidavit sworn on 4 November 2009 Mr Sigalla deposed that the school fees had been initially paid by his father-in-law unbeknownst to him and that he found out, on or about 24 August 2009, that his father-in-law had advanced his wife the money to pay the school fees. He then deposed that he knew that the money advanced by his father-in-law would need to be reimbursed to him and for that reason listed the $52,000 as an expense payable because it was an amount he needed to pay back to his father-in-law for his advancement of the school fees. The copy of the cheque for US$31,833.58 dated 13 August 2009 was clearly relevant to, and prima facie inconsistent with, that testimony. 20Page 4 of the bank statements showing the copy of the cheque was part of the statements issued by JP Morgan Chase. It was part of the statements Mr Sigalla was required to provide to ASIC by 4 December 2009. ASIC had raised with Mr Ward the non-production of parts of the bank statements. The statement by Mr Ward that the pages omitted from the documents produced on 6 November 2009 contained only promotional material was clearly incorrect. I am satisfied beyond reasonable doubt that Mr Sigalla was aware that the statements he was required to provide included the page showing the copy of the cheque and that his failure to provide that page was deliberate. I am satisfied beyond reasonable doubt that his motive for omitting that page from the documents produced was because he thought that its production would be harmful to him in the context of ASIC's investigations. 21On 21 January 2010 Mr Ward on behalf of Mr Sigalla forwarded further bank statements to ASIC including statements for the JP Morgan Chase bank account for the period from 19 December 2009 to 30 December 2009. On 31 May 2010 Mr Sigalla's solicitor provided to ASIC statements for the JP Morgan Chase bank account for the period from 21 November 2009 to 18 December 2009. Mr Sigalla has not been able to find the missing statements for the period from 22 October 2009 to 21 November 2009. He has not been able to obtain the statements through the internet because the account was closed in about February 2010.

Paragraphs 34 and 37 - failure to produce statements for the HSBC credit card. 22Mr Sigalla breached order 6(d) of the orders of 30 November 2009 by failing to produce the HSBC credit card statements to ASIC by 4 December 2009. He breached order 7(d) by failing to produce further HSBC credit card statements to ASIC by 15 January 2010. 23On 5 February 2010 Mr Ward on behalf of Mr Sigalla provided to ASIC statements for the HSBC credit card for the period from 17 August 2009 to 14 September 2009, 15 October 2009 to 15 November 2009, and 16 November 2009 to 14 December 2009. Mr Sigalla did not provide the credit card statement for the period from 15 September to 14 October 2009. He deposed that part of the reason for the delay in providing the statements to ASIC and possibly for the failure to provide a statement for the period from 15 September to 14 October 2009 was that the HSBC statements were sent to him at his New York address. Since the HSBC credit card account was stopped in about June 2010 he has been unable to find the missing statement despite having searched the documents available to him. Mr Sigalla accepted that he could have provided a complete set of the statements by 4 December 2009 had he either changed the arrangement for the statements to be sent to his New York address, or set up electronic access to his account, or asked his wife to send the statements to him. He acknowledges that he should have taken one of those steps. 24Pursuant to order 7(d), Mr Sigalla was required by no later than the 15 th of the month commencing on 15 January 2010 to provide to ASIC statements for the accounts for the period from 1 December 2009 to 28 February 2010. He provided statements for the HSBC credit card for the period from 15 December 2009 to 14 January 2010 on 5 March 2010, for the period from 15 January 2010 to 14 February 2010 on 8 April 2010 and for the period from 15 February to 14 March 2010 on 27 April 2010. The statements were produced late. Mr Sigalla provides the same reason for the late production of these statements, but acknowledges that the delay could have been and should have been avoided. 25The late, and in one respect incomplete, production of HSBC credit card statements is less serious than the failure to provide complete statements of Mr Sigalla's bank account with JP Morgan Chase dealt with above, and his failure to disclose the existence of his JP Morgan Chase credit card and to provide statements for the JP Morgan Chase credit card referred to below.

Paragraphs 35 and 38 - failure to produce statements for the Wizard credit card 26The Wizard credit card statements for the period from 26 August 2009 to 30 November 2009 were provided to ASIC on 5 February 2010. They ought to have been produced by 4 December 2009. Mr Sigalla accepted that he could have produced the Wizard credit card statements by 4 December 2009 by setting up online access to his Wizard account and that he should have done so. 27By order 7(d) Mr Sigalla was required to produce further Wizard credit card statements for the period from 1 December 2009 to 28 February 2010. He was required to produce those documents on the 15 th of the month commencing 15 January 2010. He did not produce those documents, although in April and May he produced credit card statements for later periods. He deposed that he has not been able to find statements for the period from 1 December 2009 to 28 February 2010. His Wizard credit card account was stopped in about June 2010. He says that part of the reason for not providing the missing statements was that a redirection service expired in December 2009 and it took him a few months to adjust to the change. Mr Sigalla accepted that he could have avoided the problem by changing the redirection arrangement when he returned to Australia, and could have obtained the missing statements by setting up electronic access to his Wizard account, or by contacting the bank and should have done so. 28The failure to comply with the court's orders in relation to the production of credit card statements for the Wizard credit card is also less serious than the failure to produce statements for the JP Morgan Chase account and the failure to disclose and produce statements for the JP Morgan Chase credit card. Mr Stack who appeared for ASIC did not submit that Mr Sigalla was endeavouring to conceal relevant transactions by not producing the HSBC or Wizard credit card statements, or producing them late.

Paragraphs 36, 39 and 41 - the JP Morgan credit card 29Mr Sigalla had a credit card with JP Morgan. His wife held a supplementary card that enabled her to use the available line of credit. Order 6(d) of the orders of 30 November 2009 required Mr Sigalla to provide a copy of statements for that credit card for the period from 26 August 2009 to 30 November 2009 and to do so by 4 December 2009. He failed to do so. Order 7(d) required him to provide statements for the period from 1 December 2009 to 28 February 2009 in respect of that credit card by no later than the 15 th of each month commencing on 15 January 2010. He also failed to comply with that order. Order 5(a) required Mr Sigalla to file and serve on ASIC by 4 December 2009 an affidavit setting out the name and address of every financial institution of which there was an account in his name or under his control together with details of the account. In his affidavit sworn on 4 December 2009 in purported compliance with that order, he failed to disclose the JP Morgan Chase credit card. 30Mr Sigalla acknowledges that he was aware that he was required to disclose the existence of the JP Morgan Chase credit card and to provide statements of the credit card account. He acknowledges that his failure to do so was deliberate. On 5 March, 8 April and 27 April 2010 through his solicitor he belatedly produced to ASIC copies of the JP Morgan Chase credit card statements for the periods from 10 December 2009 to 9 April 2010. His credit card had been stopped in about February 2010. 31Mr Sigalla deposed: " 37 I accept that I could have obtained these statements by accessing my account JP Morgan credit card account electronically and that this is what I should have done. 38 However, I was conscious that JP Morgan was the U.S. bank used by my wife to pay for expenses such as rent and ordinary living expenses. I was concerned that if ASIC found out about our bank and credit card accounts with JP Morgan and contacted JP Morgan, JP Morgan would close our accounts. This concern was based on experience that accounts held by me at other financial institutions had been stopped or frozen as a result of communications from ASIC following the introduction of the freezing orders. Mr Ward relayed these concerns in a letter to ASIC dated 20 October 2009 in which he asked ASIC to refrain from contacting JP Morgan. A copy of that letter appears at pages 243 to 244 of the Bundle. ... 54 By 15 January 2010, my wife and daughters had returned to Australia and ensuring that they had access to money was no longer a reason not to disclose the JP Morgan credit card statements to ASIC. I had electronic access to my JP Morgan accounts and I accept that I should have used this method to provide ASIC with the Missing Documents before 15 January 2010. 55 Because my JP Morgan credit card account was stopped in about February 2010 and because I have not been able to find the Missing Statements despite searching the documents available to me, it remains the case that I have not produced these Missing Statements to ASIC. ... 65 I accept that I knew about the account and I should have disclosed it. However, as I explained in paragraph 32, I was concerned that if ASIC found out about our credit card account with JP Morgan and contacted JP Morgan, JP Morgan would close the accounts. As explained in Mr Ward's 20 October 2009 letter at pages 243 to 244 of the Bundle, this concern was based on my experience with other financial institutions following the introduction of the freezing orders. " 32It was put to Mr Sigalla in cross-examination that in deliberately not disclosing the existence of the JP Morgan credit card when he knew he was required to do so, he was consciously defying the authority of the court. Mr Sigalla did not accept that that was his state of mind. I accept his denial. That is to say, whilst Mr Sigalla was aware that he was required to disclose the existence of the JP Morgan credit card and to produce statements for the account because the court had ordered him to do so, I accept that his failure to do so was not motivated by his intending to defy the court's authority, but was due to other reasons. 33I accept that one of Mr Sigalla's reasons for not disclosing the existence of the credit card or producing the statements for the credit card was that he was concerned that to do so would probably lead to JP Morgan's cancelling the credit card and this would create serious difficulties for his wife and children when they were in New York. Mr Sigalla gave evidence in cross-examination that Mrs Sigalla had been able to open an account in New York into which her father paid moneys. Nonetheless I accept his evidence that if she had been deprived of the use of the credit card, it would have created serious difficulties for her. I accept that, in part, Mr Sigalla was motivated in not disclosing the existence of the credit card by his desire to protect his wife and family from the adverse consequences that would arise if the credit card were cancelled. 34However, I am also satisfied beyond reasonable doubt that a further motive for Mr Sigalla's not disclosing the existence of the credit card was that he was concerned that ASIC was investigating the use of his credit cards to pay for the services of escorts and he did not want ASIC to know that the JP Morgan credit card had also been used in that way. 35Mr Sigalla had been aware prior to 4 November 2009 that ASIC was investigating the use of his credit cards to pay for the services provided by businesses called "Premier Models" and "Elite Escorts". In his affidavit sworn on 4 November 2009 Mr Sigalla responded to an affidavit of Mr Terry Marks of ASIC in relation to allegations that he had used the services of Premier Models and Elite Escorts. He denied that allegation and said that the escort services had been used by a guest of his who paid for them using his credit card and reimbursed him in cash. Whatever the truth of ASIC's allegation, Mr Sigalla was aware that ASIC was investigating the use of his credit cards to pay for such services. On 7 November 2009 the JP Morgan credit card was used to pay for similar services provided by TLC Design Pty Ltd in amounts totalling $10,700. 36As at 4 December 2009 Mr Sigalla was aware that ASIC had concerns about and was investigating the use of his credit cards for the payment of the services of escorts and was aware that the JP Morgan credit card had been used for that purpose on 7 November 2009. In cross-examination he gave the following evidence: " Q. Were you concerned that if you did produce those account statements that ASIC might become aware of the TLC Design transaction? A. Why would I have to be concerned of that, it was not illegal? HIS HONOUR Q. What is the answer to the question? A. No, I was not concerned, your Honour. " 37I do not accept Mr Sigalla's denial. The fact that ASIC did not succeed in establishing a case to answer that the use of credit cards to pay for the services of escorts was a contravention of the court's orders, does not mean that there was no reason for Mr Sigalla to be concerned if ASIC became aware of the TLC Design transaction. I am satisfied beyond reasonable doubt that Mr Sigalla was concerned that ASIC might become aware of a further transaction of the kind which it had already indicated it was investigating. It might be inferred from his first non-responsive answer that he took the view that it was not a breach of the court's orders for him to use the credit card to incur liabilities to the credit card provider for such services. Nonetheless, he was aware that that was a matter of concern to ASIC. He was aware that ASIC was pursuing the question. I am satisfied that he would not have wished the ambit of ASIC's inquiries to be expanded. 38I am satisfied beyond reasonable doubt that an additional motive for Mr Sigalla in not complying with the court's orders in relation to the disclosure of the JP Morgan credit card was that he did not wish to disclose that the credit card had been used for the payment of escort services.

Paragraph 40 39Order 7 of 30 November 2009 required Mr Sigalla to provide by no later than 15 January 2010 and thereafter on the 15 th of each month bank statements for the period from 1 December 2009 to 28 February 2010 for his St George Bank account, his American Express card and his St George credit card. The statements were not produced by that date. The St George credit card statements were produced on 21 January 2010. 40The American Express card statements for the period from 1 December 2009 to 15 January 2010 were not produced. American Express card statements from 16 January to 28 February 2010 were produced on 5 March and 27 April 2010. 41The St George credit card statements from 1 December 2009 to 14 December 2009 were not produced. Statements for the period from 15 December 2009 to 28 February 2010 were produced on 21 January 2010, 5 March 2010 and 8 April 2010. Mr Sigalla was unable to find missing statements. The American Express and St George accounts were stopped and this has prevented his obtaining the missing statements. 42Mr Sigalla acknowledged that he could have avoided the problems of delay and incomplete production by accessing his accounts electronically or by approaching the financial institution directly. He has had difficulties in obtaining documents from the St George Bank after the freezing orders were made because once he logged onto his St George account the freezing order precluded his paying the required fee from the account to obtain electronic copies of the documents.

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:

1. 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.
2. Order that Mr Sigalla perform 120 hours of community service.
3. 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. 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: 28 February 2012