PENALTIES
140 There are, potentially, a wide range of matters which will guide the Court's exercise of its sentencing discretion in contempt cases. They were summarised by Merkel J in Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at 501; [2006] FCA 83 at [25] as follows:
1.5 In deciding the appropriate penalty, a court should consider the following factors:
(1) contemnor's personal circumstances;
(2) nature and circumstances of the contempt: R v West Australian Newspapers Ltd; Ex Parte DPP (WA) (1996) 16 WAR 518;
(3) effect of the contempt on the administration of justice: Durack v Gallagher (1982) 44 ALR 272 at 286-7 [65 FLR 459];
(4) contemnor's culpability: Durack v Gallagher (1982) 44 ALR 272 at 286-7 [65 FLR 459];
(5) need to deter the contemnor and others from repeating contempt: DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, Kirby P at 741; and
(6) absence or presence of a prior conviction for contempt: Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410. However, other criminal history is irrelevant: R v Giscombe (1984) 79 Cr App R 79 at 84.
1.6 In deciding the amount of any fine the Court should take into account the contemnor's financial means: Smith v R (1991) 25 NSWLR 1. The court may also suspend the fine on terms.
Contrition and apology
1.7 Genuine contrition and a full and ample apology may also reduce the penalty: R v Gray [1900] 2 QB 36 at 41-2; Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (No 2) (1982) 65 FLR 432 at 436.
Imprisonment
1.8 It is widely accepted that the court should only impose a term of imprisonment in the most serious criminal contempt cases: Keeley v Justice Brooking (1979) 143 CLR 162 at 179; Gallagher v Durack (1983) 152 CLR 238.
1.9 In Deputy Commissioner of Taxation v Hickey [1999] FCA 259 [(1999) 42 ATR 229], Carr J held that imprisonment is a "last resort": see also R v Vasin (1985) 39 SASR 45; [R v] James (1985) 14 A Crim R 364; [R v] Skipper (1992) 64 A Crim R 260.
141 The factors that may be taken into account were also considered by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279 at 283; [2003] FCA 1501 at [16]:
Considerations which are relevant in deciding what is the appropriate penalty include:
(a) The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed: Australian Competition and Consumer Commission v Info4PCCom Pty Ltd (2002) 121 FCR 24 at [144].
(b) Whether the contemnor subjectively intended to disobey the order: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 218; Australian Competition and Consumer Commission v Hughes [2001] ATPR 41-807 at [20]; and Info4PCCom.
(c) The importance of bringing home to the contemnor the seriousness of the contempt: Hughes at [24]; Info4PCCom at [139].
(d) Whether the contemnor has offered any explanation or apology for his conduct: Gallagher v Durack (1983) 152 CLR 238, per Gibbs CJ, Mason, Wilson and Brennan JJ at 245.
(e) An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor: [ASIC v] Matthews [(1999) 32 ACSR 404; [1999] FCA 803] at [25] and [29].
142 Similarly, Palmer J summarised relevant factors in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115 at 123; [2004] NSWSC 1259 at [29]:
For present purposes the relevant factors to be considered may be summarised thus:
(i) the seriousness of the contempt proved;
(ii) whether the contemnor was aware of the consequences to himself of what he proposed to do;
(iii) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;
(iv) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 166;
(v) the reason or motive for the contempt;
(vi) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;
(vii) whether there has been any expression of genuine contrition by the contemnor;
(viii) the character and antecedents of the contemnor;
(ix) what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the court;
(x) what punishment is required to express the court's denunciation of the contempt.
143 The factors identified by Spender J in World Netsafe Pty Ltd and by Palmer J in Michalik were recently cited with approval by Flick J in Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188 at [15] and by Moshinsky J in Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Limited) [2016] FCA 1437 at [40]-[42], though their Honours noted that neither list should be considered exhaustive. See also Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [8]-[11] (Rares J).
144 To the extent that they are relevant, I have had regard to these considerations in dealing with the present application.
145 There was some measure of agreement between the parties as to sentencing considerations. In particular, it was common ground that each of the contempts constituted a serious contravention of the Court's orders and that, either individually or collectively, they warrant custodial sentences. Mr Hann contended, however, that his age and infirmity require that any sentence of imprisonment be wholly suspended. at the forefront of Mr Hann's plea in mitigation was his contention that he suffered from chronic ill health, both physical and psychological.
146 Mr Hann supported these submissions by reference to medical reports obtained from his general practitioners, Dr David Chen and Dr Julia Jaensch, a consultant cardiologist physician, Dr Michael Mok and from clinical psychologists, Ms Arisja Oberholzer and Mr Patrick Newton (the latter who was also a forensic psychologist). There were additional reports which recorded the results of various tests undertaken by Mr Hann over recent years, as well as documentation pertaining to various cardiology appointments.
147 Dr Chen's letter from 2016 reported that, since 1998, Mr Hann had, at various times, suffered from hypertension, hypercholesterolaemia, generalised anxiety, major depression and osteoarthritis. In 2000 he had undergone a coronary artery bypass graft and, in 2015, he had suffered from an acute subdural haematoma. Dr Chen reported that Mr Hann's ischaemic heart disease was presently stable.
148 Dr Jaensch's letter of March 2017 reported that Mr Hann had been diagnosed with a hernia and valvular aortic stenosis in late 2016 and with a haematoma and pulmonary hypertension in February 2017. She said that Mr Hann had recently undergone a stent insertion for his cardiac disease, as well as an aortic valve replacement procedure in February 2017. She also recorded that Mr Hann is presently being treated for congestive cardiac failure and generalised anxiety disorder. She further indicated that Mr Hann had expressed the view that his wife is "under considerable stress" due to his health conditions.
149 In his report of March 2017, Dr Mok confirmed that Mr Hann continues to suffer cardiac disease but that recent surgery had stabilised his condition. No further surgical intervention was contemplated in the near future.
150 Mr Newton examined Mr Hann in October 2016. In his report of December 2016, Mr Newton found that Mr Hann suffered from a major depressive disorder with agitated distress which he assessed at a moderate level of clinical severity. He advised that:
As matters stand, Mr Hann remains a physically and emotionally vulnerable man who would have considerable difficulty adjusting to the prison environment.
151 In a further report, which was filed on the eve of the penalty hearing in March 2017, Mr Newton confirmed that Mr Hann continued to suffer from these conditions. Mr Newton observed that:
It should be noted that Mr Hann's anxiety is only related to his fear of incarceration in a secondary fashion. That is, he expresses little concern on his own behalf with regards to managing the rigours of imprisonment. Rather, it is his concern that his wife would experience significant difficulties coping without him that exercises his mind most strongly.
152 Counsel for Mr Hann contended that this medical evidence pertaining to psychological conditions established that any period of imprisonment would bear more heavily on Mr Hann than it would on other prisoners who did not suffer from these conditions. He relied in particular on three authorities. They were: Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596; [2011] FCAFC 17; R v Verdins (2007) 16 VR 269; [2007] VSCA 102; and R v Miceli [1998] 4 VR 588.
153 The first two of these cases explain the approach which should be taken by the Court in dealing with a contemnor (or other offender) who is suffering from ill health. The third deals with the more general issue of the place of "mercy" or "clemency" in the sentencing process.
154 In Vaysman, the Court was dealing with a 74 year old offender who had a number of significant health problems. He appealed against the severity of the custodial sentences imposed on him for contempt of Court. Besanko J (with whom Bromberg J agreed on this issue) referred to a number of authorities commencing with R v Smith (1987) 44 SASR 587, a decision of the Full Court of the Supreme Court of South Australia. His Honour (at 631 [123]) set out part of the reasons of King CJ (Cox and O'Loughlin JJ agreeing) from Smith at 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
155 Justice Besanko then directed attention (at 632 [126]-[127]) to the implications of what King CJ had said about the burden of imprisonment on someone suffering from ill health. His Honour said that:
First, I do not think that the burden must be "particularly onerous" … before ill health becomes relevant. It may be of less significance if it is not particularly onerous, but it is still relevant if it would impose a greater burden on the appellant.
Second, the appellant's age and state of health were relevant to the sentence of imprisonment and not just the determination of the period he should spend in prison. That may not be so in some cases but it seems to me that this is a case where it was relevant on both issues
156 In Verdins, the Victorian Court of Appeal also referred (at 275 [27]) to the observations of King CJ in Smith and (at 276 [28]) to the proposition, drawn from among the five identified in R v Tsiaras [1996] 1 VR 398 at 400, that "psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health".
157 "This proposition", the Court said in Verdins, "requires neither explanation nor qualification". The Court regarded it as self-evident that "a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health" (at 276 [28]). Their Honours also considered that there should be a new sixth proposition, namely that, "where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment" (at 276 [30]).
158 In Miceli, Tadgell JA (with whom Winneke P and Charles JA agreed) criticised a trial judge who had said, three times during sentencing submissions, that "I am not here to dispense mercy, I am here to dispense justice". His Honour said that it "cannot be doubted that an element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion …": at 592; see also at 594 (Charles JA).
159 Mr Hann's health, therefore, falls to be considered, first, in determining whether a period of imprisonment (with time to be served) should be imposed and, secondly, if the first question is answered affirmatively, in determining the length of any appropriate sentence. Mr Hann's health will be relevant in considering the burden which imprisonment would impose on him and, potentially, the impact of imprisonment on the conditions from which he suffers.
160 I had not, initially, been inclined to think that the medical evidence raised the possibility that incarceration would cause deterioration in Mr Hann's existing mental health. On reflection, I have come to the view that Mr Hann's concern for his wife's health in his absence may, possibly, exacerbate his condition. The degree to which he may be affected is uncertain, on the evidence, and will, almost, certainly, depend upon the length of time (if any) he may be separated from his wife. I am not satisfied that Mr Hann has established that there exists a "serious risk" that imprisonment will have "a gravely adverse" impact on his health. I, therefore, put this issue to one side and concentrate on the "burden" issue, bearing in mind that the burden need not be "particularly onerous" in order for it to be taken into account.
161 The weight to be accorded this consideration will depend upon an assessment, based on the available evidence, of the anticipated severity of the burden in any given case.
162 The chronic conditions from which Mr Hann suffers did not disable him from deciding to engage in the contravening conduct and then to implement his plans over a period of some years. He travelled long distances. He solicited business. He procured orders and arranged for the orders to be filled. He engaged others in his activities. Throughout the relevant period he had access to his medical advisers and was receiving treatment (including medication) for his various conditions. In short, he was, despite his chronic conditions, able to function as a business manager.
163 This does not suggest that his health is sufficiently precarious as to preclude a period of imprisonment if other relevant considerations supported such an outcome. His anxiety and depression are treatable and the prison health authorities would bear responsibility for ensuring that he had access to medication. His cardiac condition is stable and, again, is being managed conservatively.
164 On the other hand, it may be taken as a given that a person suffering from a major depressive disorder (such as Mr Hann) would be afflicted more severely by imprisonment than a person enjoying normal health: cf Verdins at 276 [28]. The fact that Mr Hann's depression has not prevented him from undertaking business activities in the community does not mean that this condition would not render any period of imprisonment more burdensome for him than for others not so afflicted. On the contrary, Mr Newton's evidence suggests that Mr Hann would have "considerable difficulty" in adjusting to prison life.
165 In addition, counsel for Mr Hann relied on the following mitigating factors:
Mr Hann's guilty pleas;
the absence of any direct evidence that Mr Hann's contraventions of the Court's orders caused any harm to others in the community; and
the absence of any evidence of personal gain.
166 Subject to one matter, I accept these submissions. Some credit must be accorded Mr Hann for his guilty pleas. They have obviated the necessity for a potentially long trial and the associated costs and expense. The pleas were, however, made belatedly and not before the ACCC had presented its uncontested case. During much of this period, Mr Hann was not legally represented and the pleas were forthcoming after he obtained such representation.
167 Counsel acknowledged that Mr Hann had not exhibited any contrition or apologised to the Court for his contemptuous conduct. He also advised the Court that Mr Hann's financial circumstances were such that there was "little prospect" that he would be able to pay any fine which the Court might be minded to impose.
168 The ACCC initially contended that Mr Hann had been convicted of contempt by the Magistrates' Court of Victoria in March 2011. At the penalty hearing, it accepted that the Magistrates' Court had acted under s 135 of the Magistrates' Courts Act 1989 (Vic), which concerns that Court's power to enforce orders, rather than s 134 of that Act, which deals with contempt of court. What had happened was that, in April 2010, Mr Hann had been ordered by that Court, in another consumer protection case, to place an advertisement in two newspapers circulating in the Ballarat and Swan Hill areas. He had failed to do so. In March 2011, the Court ordered that he be imprisoned for a period of 14 days but suspended the operation of the order upon condition that Mr Hann place the advertisements within a stipulated period. No conviction was recorded. Although Mr Hann's offence was not dealt with as a contempt of court, his failure to comply with the earlier publication orders may well have constituted such a contempt.
169 The ACCC informed the Court that Mr Hann had accumulated a large number of criminal convictions in the Northern Territory, Western Australia, South Australia and Victoria between 1961 and 1990. These convictions are dated and can have little influence on the sentencing process in which I am now engaged.
170 As already noted, the seriousness of Mr Hann's conduct is not in dispute. That seriousness is compounded by the fact that his offending continued after he was served with the present application in December 2015. His dealings with Mr Millard in February 2016 and with Mr Chatfield in March 2016, for example, constituted breaches of the Court's earlier orders, namely paragraph 9(b).
171 Although the penalty of imprisonment for contempt is to be used as a last resort, there will be and are circumstances in which the imposition of such a penalty is warranted. An example is provided by Australian Securities and Investments Commission v Reid (No 2) [2006] FCA 700, where Lander J determined that an order of imprisonment should be made where the contempt had been "committed in full knowledge of the existence of the order and undertaking which were contravened, and in circumstances where the respondent ha[d] shown not the slightest indication of remorse of contrition or, indeed, even acknowledgement of the commission of the contempt" (at [27]-[29]). The present case has many similar features although, as has been said, Mr Hann, belatedly, acknowledged his contempts.
172 Having weighed the competing considerations, I consider that the appropriate orders are that Mr Hann be sentenced to three months imprisonment in respect to each of the contraventions giving rise to Charges 1, 3, 4, 5, 7 and 8 and that he be imprisoned for five months in respect of the contraventions covered by Charges 2 and 6. The reason I regard the contraventions of Charges 2 and 6 to be more egregious than the other contraventions is that they involved solicitation of business by telling those being approached that profits (or some of them) would be donated to charity. The making of such claims had been proscribed by the earlier Court orders made on 28 May 2012 because Mr Hann had falsely represented to potential purchasers of product distribution businesses that he was conducting a charity and that all profits would be distributed to community organisations: see Halkalia (No 2) at [29]. Such reprehensible attempts to appeal to the benevolent instincts of interlocutors is to be deprecated.
173 The conduct giving rise to each of the contempts is, to varying extents, common with one or more of the other contraventions. It is therefore necessary to ensure that the principle of totality is respected: cf Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 at 350; [2015] FCAFC 59 at [40] (Dowsett, Greenwood and Wigney JJ). Accordingly, it is appropriate to order that each sentence be served concurrently with each other sentence. This will mean that Mr Hann will serve a maximum of five months imprisonment.
174 Although I consider that a period of imprisonment is warranted and not precluded by Mr Hann's age and state of ill health, I accept that any period of incarceration is likely to bear on him more onerously than would be expected of a healthier person. In these circumstances, I consider that Mr Hann should serve two weeks of his sentence and that the remainder of his sentence should be suspended on condition that he refrains from any further contravention of the Court's orders for a period of two years from the date on which the suspension takes effect.