ATTORNEY GENERAL -v- MORRISON [No 3] [2022] WASC 323 (19 September 2022)

1. Criminal contempt of court is the only common law criminal offence in Western Australia.[2]
2. Order 55 r 7(1) of the Rules of the Supreme Court 1971 (WA) (the Rules) provides that a court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on the contemnor, or by both committal and fine.
3. The purpose of punishment for contempt is to protect and uphold the undisturbed and orderly administration of justice in the courts according to law. There are two principal ways that sentencing for contempt may serve this purpose: first, by vindicating judicial authority by the imposition of a punitive sentence; and second, by coercing obedience to the court by the imposition of a remedial sentence.[3]
4. The question of punishment for contempt of court is entirely a matter within the discretion of the court. There is no maximum penalty applicable.[4]
5. The Sentencing Act 1995 (WA) does not apply to the punishment of a person for contempt.[5] A court will nevertheless take into account factors ordinarily applicable to the punishment of criminal offences the subject of the Sentencing Act.[6] Consequently, imprisonment is a sentence of last resort.[7] The Attorney General does not seek a term of imprisonment.
6. There are a number of relevant matters that courts have established as relevant in considering the appropriate punishment for contempt:[8]

(a) the seriousness of the contempt proved;

(b) the contemnor's culpability;

(c) the reasons or motive for the contempt;

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

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

(f) the character and antecedents of the contemnor;

(g) the contemnor's personal circumstances;

(h) personal and general deterrence; and

(i) the need for denunciation of contemptuous conduct.

1. Where disobedience of an order amounts to wilful defiance or 'contumacious' conduct the court may consider this an aggravating factor.[9]
2. Conversely, the 'purging' of a contempt, for example, by way of remedial action, may be considered a mitigating factor.[10]
3. 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.[11]
4. Given the relative infrequency of sentencing for contempt, it is difficult to discern any substantial pattern in the quantum of contempt sentencing to provide a meaningful yardstick by which to measure the present sentences. Sentences imposed for unrelated and dissimilar offending cannot fill that gap.[12]
5. The breadth of the circumstances giving rise to contempt precludes the establishment of a tariff or a sentencing range.[13] The punishment must be appropriate to the facts and circumstances of the particular offence and the particular contemnor.[14]
6. It should also be borne in mind that because contempt proceedings are commenced in the civil jurisdiction of this court, the usual rule that costs follow the event applies. In assessing the appropriate penalty, the court may take into account the financial impact that will be visited upon the contemnor by the making of an adverse costs order.[15]

1. The Attorney General submitted that the contempts committed by Mr Morrison Snr and Mr Morrison Jnr:

(a) were serious because the conduct of the Morrisons was deliberate;

(b) frustrated and complicated proceedings in the Tribunal; and

(c) objectively benefitted the Morrisons.

1. The Attorney General conceded that the seriousness of the conduct and the benefits derived from the contempts have been mitigated by Mr Morrison Jnr's further sale of the Property and the return to DMC of the money she transferred to Mr Morrison Snr for the purchase of the Property before its transfer to Mr Morrison Jnr.
2. In any event, personal and general deterrence were said to be relevant considerations in the present case.
3. The Attorney General submitted that this court should impose a fine in respect of each of Mr Morrison Snr and Mr Morrison Jnr.
4. He further submitted that he should be entitled to costs on a fixed basis.

1. Although it is perhaps unusual to deal with costs first, it is relevant to the assessment of the fine to ascertain the total amount that the Morrisons will have to pay.
2. The Attorney General seeks a fixed cost order of $10,000 plus disbursements of $5,398.76.
3. There are no special circumstances in this case to follow departure from the ordinary rule. The costs follow the event. The Attorney General correctly submits that the fixed amount is conservative because it is significantly less than the amount he has incurred and the amount that would be claimable by him under the relevant cost determination on a party-party basis.
4. I find it appropriate to order that the Morrisons pay total costs in amount of $15,398.76 incorporating disbursements.

Relevant considerations Seriousness of contempt and contemnors' culpability

1. The breach of the Undertaking occurred within a short period of time after it was given and seemingly without any thought to ever obeying the Undertaking. Given settlement of the Property occurred a day after the Undertaking was given, it is a serious contempt.
2. Mr Morrison Jnr's culpability is somewhat more than that of his father's because he was the one who appears to have been principally engaged in the physical act of sending the emails and giving authority for the matter to proceed, rather than his father. It would appear from the way that the evidence was given that Morrison Jnr had the primary conduct of the transaction. In any event, both Mr Morrison Snr and Mr Morrison Jnr were culpable: they were both well aware of the Undertaking and that settlement had not taken place yet chose to proceed with settlement.

Reason or motive for contempt and whether contemnors benefited

1. The reasons or motive for the contempt are plain: the Morrisons wished the settlement to occur, as expressed by Mr Morrison Jnr in terms of not wanting to worry about the settlement going ahead. It appears that they regarded their peace of mind as more important than obeying the Undertaking.
2. Mr Morrison Jnr in particular received a benefit from the contempt. As a consequence of the way the payment was structured, he in effect received a gift of some $500,000. Although it is primarily Mr Morrison Jnr who received a benefit from the contempt, there was also a benefit to Mr Morrison Snr in that it reduced his worries about the settlement taking place. But in terms of monetary benefit, that is, after the Undertaking had been given, the primary beneficiary was Mr Morrison Jnr.

1. There has not been any genuine contrition by the Morrisons. In fact, during his evidence, Mr Morrison Jnr was critical of the Undertaking being required of Mr Morrison Snr. Indeed, he thought that the original order made by the Senior Member of the Tribunal was without foundation and he seems to have regarded the President of the Tribunal with a degree of contempt. The affidavits filed by the Morrisons in opposition to the application seem to approach it on the basis that the Undertaking should never have been required and that Mr Morrison Snr should therefore somehow be excused from giving the Undertaking. In their mind, because the Undertaking should not have been required, they had no qualms about breaching it.
2. Since then, the Morrisons have returned the money to the administrator of DMC, which acts as a degree of mitigation for their conduct and has doubtless saved much cost, expense and general unhappiness in further proceedings. Within that, there has not been any genuine expression of contrition. Nevertheless, the $500,000 has been repaid to the estate of DMC. That to some extent purges the contempt and is an important factor in assessing what is an appropriate fine.

1. Mr Morrison Snr has a relatively innocuous criminal record. His last offence dates back to 2015 and although he has a number of offences, most of them are well into the past. They exhibit to some degree an unwillingness to comply with the law. A number of the offences relate to breaches of the Road Traffic Act 1974 (WA), the safekeeping of firearms and ammunition and the cultivation of cannabis. However, apart from one offence, namely, a stealing offence back in 1992 for which he received a $50 good behaviour bond for three months, there are no serious offences in his criminal record.
2. By contrast, Mr Morrison Jnr has a very unpleasant criminal record. As recently as January 2020, he was convicted of unlawful wounding in September 2018 for which he received 11 months imprisonment. There are a number of Road Traffic Code 2000 (WA) breaches. In August 2015, he was convicted of unlawful assault causing bodily harm. He has a long history of those kinds of offences together with convictions for burglary, stealing, possession of amphetamines, breach of bail, possession of a weapon and breaches of custodial based orders and intensive supervision orders. The record evidences on his part a very significant disregard for the law by which his conviction for contempt only emphasises the little regard he has for the authority of the State and in this instance, the Tribunal.
3. In terms of the Morrisons' personal circumstances, as they did not appear nor file any affidavit evidence as to their financial situation, it is difficult to say what their financial condition is. Mr Morrison Snr is 67 years old and it appears that he has ceased working. Mr Morrison Jnr is 45 years old. Mr Morrison Snr lives in a park home that he owns at the Mandurah Caravan and Tourism Park, which I assume is of relatively little value. Mr Morrison Snr has worked as a truck driver and in his affidavit described himself as 'on the pension'.[16] It is not clear why he would be 'on the pension'. As at 2 September 2021, Mr Morrison Snr owned a car and a boat.
4. Mr Morrison Jnr lives in a home that he owns at 2324 Mandurah Road, Golden Bay. He is currently employed to drive trains and other vehicles. Mr Morrison Jnr is divorced and Mr Morrison Snr is no longer in a relationship. Mr Morrison Jnr has children but it appears they do not live with him. It seems to me that Mr Morrison Jnr is in a better financial position and more able to pay a fine than Mr Morrison Snr. I do not know whether there is a mortgage on the property at Mandurah Road. I am not in a position to assess Mr Morrison Jnr's net financial position but it was always open to him to state what his net financial position was.

Personal and general deterrence and denunciation of contemptuous conduct

1. I am not satisfied that the need for personal deterrence has been obviated. The Morrisons' failure to express genuine contrition leads me to conclude that there was a degree of pragmatism in purging the contempt by repaying the $500,000. It therefore seems to me that I should take personal deterrence into account.
2. Those who give undertakings need to understand that a breach of an undertaking, particularly where the breach is to the benefit of the contemnors - as it was in this case - is a serious matter. General deterrence is important. The fine should reflect both personal and general deterrence.
3. Similarly, the need to denounce contemptuous conduct is important in this case as part of general deterrence.

1. Having regard to the above factors and the Attorney General's detailed submissions, I have determined that Mr Morrison Snr and Mr Morrison Jnr should each receive different fines. Normally parity would apply but, in this case, given the relatively better position of Mr Morrison Jnr and his involvement in the transfer of the Property - at least in practical terms of sending emails and so forth - the fine imposed on him should be higher.
2. I have concluded that an appropriate fine for Mr Morrison Snr is $7,500 and for Mr Morrison Jnr is $10,000. I bear in mind the $15,398.76 of costs and disbursements that the Morrisons will have to pay which results in a collective total amount of $32,898.76. It was a serious breach that, having regard to all the factors, requires a penalty of this level be imposed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See Attorney General v Morrison [No 2] [2022] WASC 295.

[2] See R v Lovelady; Ex parte Attorney General [1981] WASC 329; [1982] WAR 65, 66; Briggs v Lunt [No 4] [2011] WASCA 145 [34].

[3] Cossens v Petta [No 3] [2015] WASC 492 [8].

[4] Allbeury v Corruption and Crime Commisssion [2012] WASCA 84; (2012) 42 WAR 425 [215], [218] (Buss JA, McLure P & Mazza JA agreeing).

[5] Sentencing Act 1995 (WA) s 3(3)(a).

[6] Allbeury v Corruption and Crime Commisssion [218] (Buss JA, McLure P & Mazza JA agreeing).

[7] Dental Board of Australia v Traianou [2011] WASC 293 [40]; Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [3].

[8] See Wood v Staunton (No 5) [1995] NSWSC 61; (1995) 86 A Crim R 183, 185; Kennedy v Lovell [2002] WASCA 217; (2002) 27 WAR 39 [14]; Allbeury v Corruption and Crime Commisssion [216]; Perpetual Trustees Victoria Ltd v Allen [3]; Dental Board of Australia [41]; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 [101]; Porter v Steinberg [No 2] [2019] WASC 473 [35].

[9] Kazal v Thunder Studios Inc (California) [105] - [106].

[10] Porter v Steinberg [No 2] [46].

[11] Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [44].

[12] Kazal v Thunder Studios Inc (California) [118].

[13] Dental Board of Australia v Traianou [45].

[14] Dental Board of Australia v Traianou [45]; Allbeury v Corruption and Crime Commisssion [251].

[15] Porter v Steinberg [No 2] [39].