Australian Securities and Investments Commission v Wealth & Risk Management... [2025] FCA 722 | Case summary

[4]

Australian Competition and Consumer Commission v Hughes [2001] FCA 38; [2001] ATPR 41-807

Australian Securities and Investments Commission v Wealth & Risk Management... [2025] FCA 722 | Case summary | Zoe

[81]

This proceeding was commenced by an originating application filed on 10 March 2017 against three corporate entities owned and controlled by Mr Fuoco. The first defendant, Wealth & Risk Management Pty Ltd (WRM), was the holder of an Australian Financial Services Licence (AFSL) permitting it to provide advice to retail clients about life insurance and superannuation products. The second defendant, JECA Pty Ltd, was a related company which carried on marketing activities. The third defendant, Yes FP Pty Ltd, was a corporate authorised representative of WRM, and employed most of the authorised representatives of WRM who provided advice on life insurance and superannuation products. For convenience, I will refer to WRM, JECA and Yes FP collectively as the WRM entities. Mr Fuoco was subsequently joined as the fourth defendant by consent orders made on 8 August 2017.
ASIC alleged that the WRM entities had contravened various provisions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and sought relief including declarations, pecuniary penalties and injunctions. ASIC alleged that Mr Fuoco had been knowingly involved or concerned in contraventions by the WRM entities, or had aided, abetted, counselled or procured those contraventions, and sought orders to restrain him from carrying on a financial services business or related businesses, providing financial product advice, or dealing in financial products.
In broad terms, ASIC alleged that the WRM entities had conducted a business or scheme that involved offering and giving cash payments to clients in connection with the provision of financial product advice and financial services. JECA would attract prospective clients to its website by offering loans or cash payments to persons with a poor credit history. Persons who approached JECA for a loan or cash payment would be asked to provide details of their personal circumstances, following which they would be referred to WRM or its authorised representatives to obtain financial advice. The advice provided was to the effect that they should alter their superannuation and insurance arrangements by transferring to a new superannuation fund and purchasing new or replacement life insurance, total and permanent disability insurance, or income protection insurance. The new superannuation fund would pay WRM a fee for providing this advice to each client, while the insurance company would pay WRM an up-front commission. WRM would pay the commission to JECA, who would in turn make a cash payment to the client which constituted the loan or cash payment that had initially been sought. The true nature of the scheme was not disclosed by JECA or Yes FM in their website and online advertising. The advice given by WRM and its authorised representatives was typically neither appropriate nor in the best interests of clients.
On 8 May 2017, Moshinsky J granted interlocutory injunctions against the WRM entities restraining them (among other things) from making any offers of cash payments to prospective retail clients in connection with the provision of a statement of advice, the switching of superannuation or the purchase of insurance products, and from advertising, promoting or marketing any business or service involving the offer of cash payments to retail clients in connection with financial products or services: see Australian Securities and Investments Commission v Wealth & Risk Management Pty Ltd [2017] FCA 477 (ASIC v WRM (No 1)).
In September 2017, within about four months after the interlocutory injunctions were made, Mr Fuoco commenced operating and managing a business through another corporate entity, Financial Circle Pty Ltd, which was substantially the same as the business that had been operated by the WRM entities, save that prospective clients were offered loans instead of cash rebates. This led ASIC to commence separate proceedings in this Court, in which further interlocutory injunctions were made to restrain Financial Circle from continuing its business. Financial Circle was ultimately found to have engaged in misleading or deceptive conduct and unconscionable conduct, as a consequence of which it was ordered to pay pecuniary penalties and was permanently restrained from carrying on any business relating to financial services: Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644; 131 ACSR 484. While Mr Fuoco was associated with the contraventions of Financial Circle, he was not personally joined as a party to that proceeding.
On 5 February 2018, Moshinsky J delivered judgment in the present proceeding, in which he found that the WRM entities had contravened the relevant provisions of the Corporations Act and the ASIC Act as alleged by ASIC, and that Mr Fuoco was knowingly involved in those contraventions: see Australian Securities and Investments Commission v Wealth & Risk Management Pty Ltd (No 2) [2018] FCA 59; 124 ACSR 351 (ASIC v WRM (No 2)).
Mr Fuoco had admitted the allegations made by ASIC in its further amended statement of claim, and consented to the relief sought against him, including declarations of contravention, injunctions, civil penalties and costs: ASIC v WRM (No 2) at [4]-[5], [64], [129]-[133], [152], [161]. In particular, Mr Fuoco admitted that he devised and implemented the cash rebate scheme described above, and was intimately involved in its operations: ASIC v WRM (No 2) at [64], [172]. In concluding that Mr Fuoco was knowingly concerned in the contraventions by the WRM entities, Moshinsky J found that the extent of his involvement indicated that he was the "mastermind and architect" of the scheme: ASIC v WRM (No 2) at [131].
Justice Moshinsky ordered the WRM entities collectively to pay a total sum of $7.15 million in pecuniary penalties and Mr Fuoco to pay a pecuniary penalty of $650,000 plus ASIC's costs fixed in the amount of $50,000. Relevantly, Moshinsky J made the Restraint Order in the following terms:
1. The fourth defendant be restrained for a period of 10 years commencing on 22 December 2017, whether by himself, his servants, agents and employees or otherwise, from:

[84]

The WRM entities subsequently entered liquidation, and have not paid the pecuniary penalties required by the orders. While Mr Fuoco made payments in March 2018 totalling $50,000 towards the first monthly instalment in respect of his pecuniary penalty and costs, he has not since made any further payments in respect of those liabilities. He remains indebted in the amount of $606,500 in respect of the pecuniary penalty order and $93,500 in respect of the costs order. Following service by ASIC of a bankruptcy notice, Mr Fuoco was declared bankrupt on 24 September 2019, as a result of which he was automatically disqualified from managing corporations under s 206B(3) of the Corporations Act. Mr Fuoco was discharged from bankruptcy on 25 September 2022.
On 22 December 2023, ASIC filed its interlocutory application seeking declarations that Mr Fuoco is guilty of contempt of court and orders punishing him for that contempt. ASIC relies on an amended statement of charge dated 17 June 2024 (ASOC). The charges against Mr Fuoco comprise 18 separate counts of breaching the Restraint Order over a four-year period between March 2019 and May 2023. The charges include allegations that Mr Fuoco carried on a financial services business, carried on a business related to financial products and financial services, held himself out as carrying on a financial services business, and was in fact involved in the provision of financial advice. With respect to each charge, Mr Fuoco's conduct is alleged to have been contumacious and in deliberate defiance of the Restraint Order.
At a case management hearing on 6 December 2024, at which Mr Fuoco was represented Ms Aprile of counsel acting pro bono, the parties informed the Court that they had reached a resolution of the matter on the basis that Mr Fuoco would admit all charges in the ASOC. At that case management hearing, Mr Fuoco gave an undertaking to the Court that he was prepared to comply "on a permanent basis" with the terms of the Restraint Order and with a separate banning order that was made by ASIC on 13 September 2023 to ban him from engaging in any credit activities.
In support of its contempt application, ASIC has filed 15 affidavits from employees of ASIC, former employees of the businesses carried on by Mr Fuoco and the spouse of one former employee, consumers of those businesses, and a business associate of Mr Fuoco. The evidence on which ASIC relies comprises:

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Contempt of court involves an interference with the effective administration of justice, either in a particular case or more generally, and as such is "a matter of basic public significance" that places at risk the whole system of justice: Deputy Commissioner of Taxation v Hickey [1999] FCA 259; 42 ATR 229 at [35] (Carr J); see also Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106 (Gibbs CJ, Mason, Wilson and Deane JJ). The exercise by the Court of its power to punish contempt is directed to vindicating its authority and preserving the rule of law: Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391 at [131] (Tracey J), referring to Australian Competition and Consumer Commission v Hughes [2001] FCA 38; [2001] ATPR 41-807 at [15] (Tamberlin J).
Punishment for contempt may serve the dual functions of enforcement of the process and orders of the court, and punishment of acts which interfere with the administration of justice: Mudginberri Station at 106 (Gibbs CJ, Mason, Wilson and Deane JJ). Although proceedings for contempt proceed in the civil jurisdiction of the court and are tried summarily, they are essentially criminal in nature and must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534 (Brennan, Deane, Toohey and Gaudron JJ); Mudginberri Station at 109, 115 (Gibbs CJ, Mason, Wilson and Deane JJ); Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 at 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ). However, contempt proceedings are not to be equated with the trial of a criminal charge: Witham at 534 (Brennan, Deane, Toohey and Gaudron JJ).
In this Court, the procedure for bringing an application for contempt is governed by Div 42.2 of the Rules. If a party to a proceeding alleges that a contempt was committed by a person in connection with the proceeding, that party must make an interlocutory application in the proceeding for punishment of the alleged contempt: r 42.11(1). The application must be accompanied by a statement of charge specifying the contempt with sufficient particularity to allow the person to answer the charge, together with the affidavits on which the party intends to rely to prove the charge: r 42.12. The person charged may file affidavits in answer to the charge, or may give oral evidence and call witnesses without filing any affidavits: r 42.15.
A distinction has been maintained between civil contempts and criminal contempts, including by reference to whether the object of the proceedings is remedial or coercive (i.e. directed at securing obedience with the order or judgment) or punitive (i.e. directed at punishing wilful disobedience with the order or judgment). This distinction is sometimes couched as whether the proceedings involve the enforcement of private interests or the vindication of the public interest. However, there is no rigid dichotomy between these categories, and the differences between civil and criminal contempt have been described as "in significant respects, illusory" given the potential overlap between such objects: see Witham at 532-534 (Brennan, Deane, Toohey and Gaudron JJ); see also at 539 (McHugh J). The outcome in either case is the imposition of punishment, usually in the form of imprisonment, the imposition of fines, or the sequestration of property.
Deliberate conduct in breach of a court order or undertaking will amount to a civil contempt where it involves wilful (i.e. not merely casual, accidental or unintentional) disobedience: Mudginberri Station at 113 (Gibbs CJ, Mason, Wilson and Deane JJ); Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9] (Finn J); Australian Securities and Investments Commission v One Tech Media Ltd (No 3) [2018] FCA 1071 at [19] (Moshinsky J). Such conduct may constitute a criminal contempt if it involves deliberate or "contumacious" defiance of the order or undertaking: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 489 (Barwick CJ); Witham at 530 (Brennan, Deane, Toohey and Gaudron JJ), 538-539 (McHugh J).
The principal elements necessary to establish a contempt of court involving the breach of a court order are that an order was made by the court in terms that are clear, unambiguous and capable of compliance; that the order was served on the alleged contemnor, who had knowledge of the terms of the order; and that the alleged contemnor breached the terms of the order: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31] (Gillard J); One Tech at [20] (Moshinsky J). However, it is not necessary to establish that the alleged contemnor understood the true meaning of the terms of the order, nor that he or she intended to disobey the order or was aware that his or her conduct constituted a breach of the order, although such matters may be relevant to the question of penalty: see e.g. Metcash Trading at [9] (Finn J).
While it is accepted that the party who brings an application for contempt bears the onus of proving the elements necessary to establish the contempt, and that such proof must be on the criminal standard of beyond reasonable doubt, those matters have a limited bearing on the disposition of the present case, in the light of Mr Fuoco's admission of the facts constituting the alleged contempt, including the characterisation of his conduct as deliberate or contumacious.

[91]

The Restraint Order made on 5 February 2018 was clear and unambiguous. It can be readily inferred that Mr Fuoco had knowledge and an understanding of the terms of the Restraint Order and its effect. He has qualifications in financial planning and has worked in financial services for more than 20 years. He was the principal architect of the cash rebate scheme that was the subject of the civil penalty proceedings against the WRM entities, having both designed and overseen the scheme and devised and procured its implementation: ASIC v WRM (No 2) at [170], [172] (Moshinsky J). He was legally represented and voluntarily gave undertakings and signed a settlement agreement by which he agreed to the subject matter of the orders made by the Court. In an affidavit that was tendered at the substantive hearing of the proceeding before Moshinsky J, Mr Fuoco recognised and acknowledged his "failings from both a compliance and conduct perspective", and expressed regret for the impact of the scheme on affected individuals.
The Restraint Order was endorsed with a penal notice in accordance with r 41.06 of the Rules, by which Mr Fuoco was informed that he would be "liable to imprisonment, sequestration of property or punishment for contempt" if he were to disobey the order by doing an act which the order required him to abstain from doing.
The conduct that is the subject of the present contempt charges bears close similarities to the scheme that was at the heart of the civil penalty proceedings in which the Restraint Order was made, leaving no doubt that Mr Fuoco would have been aware that such conduct was encompassed within the scope of that order.
The Restraint Order was personally served on Mr Fuoco in accordance with r 41.07 of the Rules. On 6 February 2018, a copy of the Restraint Order was sent by email to the parties, including Mr Fuoco's solicitor who forwarded the email to his client. Mr Fuoco's knowledge of the terms of the Restraint Order may also be inferred from the fact that he subsequently made payments in respect of the first instalment of the amounts payable under the orders by way of pecuniary penalty and costs.
There is no suggestion that Mr Fuoco was not capable of complying with the Restraint Order, which required him to refrain from carrying on any financial services business, providing any financial product advice, or dealing in any financial products.

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Charge 10

In breach of paragraph 8(d) of the Order, between 31 January and 1 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 11

In breach of paragraph 8(d) of the Order, on 1 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 12

In breach of paragraph 8(d) of the Order, on 2 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 13

In breach of paragraph 8(d) of the Order, on 3 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 14

In breach of paragraph 8(d) of the Order, on 7 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 15

In breach of paragraph 8(d) of the Order, on 10 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 16

In breach of paragraph 8(d) of the Order, on 22 February 2022, Mr Fuoco by himself, his servants, agents, employees or otherwise, was involved in the provision of financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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Charge 17

In breach of paragraph 8(d) of the Order, on 3 March 2022, Mr Fuoco, by himself, his servants, agents, employees or otherwise, was involved in providing financial product advice within the meaning of s 761A of the Corporations Act and his conduct was contumacious and/or in deliberate defiance of the Order.

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[113]

The principles governing sentencing for contempt of court were addressed by the Full Court in Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 at [95]-[118] (Besanko, Wigney and Bromwich JJ). As there explained, the approach to sentencing is informed by the nature of contempt proceedings and the objects sought to be advanced by such proceedings: Kazal at [95]. The underlying rationale of the power to punish contempt is to uphold and protect the effective administration of justice, including by demonstrating that the court's orders will be enforced: Mudginberri at 107 (Gibbs CJ, Mason, Wilson and Deane JJ). Accordingly, while contempt proceedings may also serve to vindicate private interests and rights, they are "essentially protective in nature as to the judicial function and the role of the courts" and are "therefore to be viewed as essential in facilitating courts being able to function properly", including being effectual in adjudicating and resolving disputes and making orders that will be obeyed: Kazal at [97] (Besanko, Wigney and Bromwich JJ).
Where a finding of contempt has been made, the court has a broad discretion to adopt such punitive or coercive measures as would best deal with that contempt: Mudginberri at 113 (Gibbs CJ, Mason, Wilson and Deane JJ). A wide range of penalties is available, including the imposition of a fine, a sentence of imprisonment, or a combination of both: Hickey at [34] (Carr J); INFO4PC at [138] (RD Nicholson J); Australian Securities and Investments Commission v Reid [2002] FCA 84 at [30] (Kenny J); Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501; (2003) 133 FCR 279 at [30], [33] (Spender J).
It is generally accepted that imprisonment is a punishment of "last resort", subject always to the nature and seriousness of the contempt: Hickey at [34] (Carr J); Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586; [2008] ATPR 42-257 at [98] (McKerracher J); Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; 276 ALR 596 at [54] (Gray J), [169]-[170] (Bromberg J); Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407 at [90] (Beech-Jones CJ at CL). The sentencing court must consider whether it is necessary to imprison the contemnor in order to vindicate and protect the court's authority, a question which calls for "the most anxious consideration": Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 at 245 (Gibbs CJ, Mason, Wilson and Brennan JJ). Before settling on imprisonment as an appropriate penalty, the sentencing court must consider whether some other form of punishment would be appropriate in all the circumstances: Vaysman at [54] (Gray J); see also at [174] (Bromberg J). Generally speaking, a sentence of imprisonment will be confined to the most serious of criminal contempts: Vaysman at [178] (Bromberg J).
Imprisonment may be appropriate where the contempt involves deliberate and contumacious disobedience of court orders. In addition to the gravity of the contempt, it can also be relevant to consider whether or not the contemnor has the capacity to pay a fine. If there would be no capacity to pay, the imposition of a fine would be unlikely to have any deterrent effect and may not be sufficient to vindicate the authority of the court. As the plurality noted in Gallagher (at 245), "[i]f the court comes to the conclusion that a person convicted of contempt of court will not personally suffer or be deterred by a fine, that is a matter which it may consider in imposing sentence".
In Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397; 230 ALR 528, Merkel J (at [13] and [16]) considered that, in circumstances where there was no evidence that the respondent had any capacity to pay a fine, the imposition of a fine was not likely to have a significant effect on him and a term of imprisonment was both appropriate and necessary to vindicate the authority of the court in respect of his contempts. While the sentence of imprisonment was overturned on appeal on grounds relating to the form of the court order that had been served on the contemnor, the Full Court nevertheless concluded that it remained open to impose a fine: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 at [67] (North, Goldberg and Weinberg JJ). The Court acknowledged the concerns that had been expressed by Merkel J about "the efficacy of the imposition of a fine upon the appellant having regard to the fact that he was a bankrupt", but was satisfied that it was "appropriate in all the circumstances that a substantial fine be imposed instead in recognition of the serious nature of the contempts committed", concluding that the appropriate penalty was a fine of $50,000: ibid. at [80]-[81]
In Australian Securities and Investments Commission v Matthews [1999] FCA 803; 32 ACSR 404, Sackville J (at [32]) found that there would be "little point" in imposing a fine "having regard to the fact that the respondent is unemployed and appears to have few resources", and where a fine was unlikely "to bring home sufficiently to the respondent the seriousness of his conduct and the need scrupulously to observe orders of the court". See also Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; 71 ACSR 279 at [50] (Barrett J).
On the other hand, in Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [28], the limited financial means of the respondents did not prevent Merkel J from concluding that the imposition of significant fines was appropriate to vindicate the court's authority and to deter others from engaging in similar conduct. In Vaysman at [54], Gray J considered that "[t]he fact that a person to be sentenced is bankrupt does not prevent the court from considering the appropriateness of a fine or fines", noting that a bankrupt is not relieved from an obligation to pay a fine, which "endures during the bankruptcy and after discharge from bankruptcy". His Honour also referred to the possibility of imposing a fine with a term of imprisonment in default of payment.
Ultimately, while the contemnor's inability to pay a fine may be relevant, it is not of itself a sufficient basis on which to impose a sentence of imprisonment as a penalty for a contempt of court. It is always necessary to have regard to the seriousness of the conduct comprising the contempt, along with other sentencing factors such as the personal circumstances and antecedents of the contemnor.
A sentence of imprisonment can be suspended, including on conditions to ensure that the contemnor complies with the terms of the order: INFO4PC at [138] (RD Nicholson J). The suspension of a sentence of imprisonment both renders the punishment "appreciably more lenient" and "provides a significant incentive for the contemnor to comply" with the orders made by the court: Rollinson at [104] (Beech-Jones CJ at CL). Any consideration of whether a sentence of imprisonment should be suspended usually involves two steps - first determining the appropriate length of the sentence, without having regard to the possibility of suspension, and then considering whether the sentence should be suspended by reference to the circumstances, including the nature of the offence, its objective seriousness, the need for deterrence and the subjective circumstances of the offender: see Rollinson at [90] (Beech-Jones CJ at CL).
In Kazal at [101]-[102], Besanko, Wigney and Bromwich JJ endorsed the following list of sentencing considerations as "useful ... although not exhaustive". This list had been adopted in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [129] (Tobias JA); see also the similar list set out in Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; 52 ACSR 115 at [29] (Palmer J); Australian Securities and Investments Commission v One Tech Media Ltd (No 4) [2018] FCA 1533 at [13] (Moshinsky J). Under this list, the factors relevant to the determination of an appropriate punishment for contempt of court are:

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It may also be relevant to take into account sentences imposed in comparable cases, at least where sufficient examples are available: see e.g. Vaysman at [51] (Gray J), [128] (Besanko J) [154], [188] (Bromberg J); eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590 at [31] (Derrington J). However, given the relative scarcity of contempt cases and the variation in the particular circumstances of each case, some caution should be exercised when relying on such comparisons.
The parties may make submissions as to the appropriate disposition as to penalty, including whether or not a custodial sentence should be imposed. However, at least in relation to criminal contempts, the parties should refrain from advocating from any particular sentence or range of sentence (including the length of any sentence of imprisonment) to be imposed: Kazal at [159] (Besanko, Wigney and Bromwich JJ). The role of the parties is ensure that the court is properly informed of the matters relevant to determining penalty, and to assist the court to avoid error in sentencing.
ASIC submitted that, in cases where multiple contempts have been committed over a period of time, the court can impose either separate penalties for each contempt or an aggregate sentence for all of the contempts, referring to Rollinson at [93]-[94] (Beech-Jones CJ in CL). The discussion in Rollinson was in the context of the totality principle, under which a sentencing court must consider whether the aggregate sentence for multiple offences is just and appropriate, and if necessary reduce the period of imprisonment for one or more individual sentences or make one or more individual sentences wholly or partially concurrent with the sentences imposed for other offences. Where the court imposes a single aggregate period of imprisonment referable to multiple contempts, it may nevertheless be appropriate (even if it is not necessary) to indicate the individual periods considered to be appropriate for each separate contempt, if only to "enhance transparency": see Rollinson at [94] (Beech-Jones CJ in CL); cf. Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [44]-[46] (McHugh, Hayne and Callinan JJ); see e.g. Kazal at [89]-[90], [182], [185], [190], [191]; Vaysman at [15] (Gray J), [81]-[82] (Besanko J).

[122]

Mr Fuoco is 50 years of age, and has a Bachelor of Applied Science (Deakin University) and a Masters Degree in Financial Planning (RMIT University). He has worked in various roles in the financial services industry since 2002, including as a financial planner.
Mr Fuoco has been in a de facto relationship with his current partner since 2014. He has two children, aged 8 and 17 years respectively, and is stepfather to his partner's son from a previous relationship, who is 15 years of age. His after-tax income is approximately $3,200 per week, all of which he spends on family and household living expenses. Mr Fuoco submitted that he has significant financial and emotional responsibilities in relation to his family, which are set out in his fourth affidavit sworn on 19 March 2025. Mr Fuoco and his family currently reside in a rental property, and he does not own any real property or significant personal property. Counsel for Mr Fuoco accepted that, on her instructions, Mr Fuoco would currently have limited capacity to pay any fine.
Mr Fuoco submitted that he engaged in the conduct comprising the contempts in circumstances in which he needed to provide for his family, at a time when he and his partner had experienced personal difficulties arising from the recent loss of their stillborn child and his partner's resultant mental health issues. He submitted that he is a committed family man who is otherwise of good character. He is cognisant of the negative impact that his conduct has had on his family, which included the execution of a search warrant on his home in the presence of his family, following which he and his partner separated for a short period.
In December 2024, after having received legal advice from counsel in relation to the proceeding, Mr Fuoco reached a resolution with ASIC pursuant to which he admitted the contempt charges against him. As part of that resolution, Mr Fuoco informed ASIC that "he wholeheartedly and unreservedly expresses his contrition in respect of his conduct which is the subject of this proceeding and unreservedly apologies [sic] to the Court and ASIC in respect of that conduct": Statement of Facts, para 11.1.13. This apology was repeated in Mr Fuoco's fourth affidavit sworn 19 March 2025 in the following terms:

[126]

It is not in dispute that the contempts committed by Mr Fuoco involved contumacious conduct of the most egregious kind.
The Restraint Order was directed to protecting the public from harm of the kind that was caused by the scheme operated by the WRM entities with Mr Fuoco's knowing involvement. As was found by Moshinsky J, that scheme had been marketed so as to target financially vulnerable persons who were induced by unfair tactics into paying fees and commissions which significantly eroded their existing superannuation funds: ASIC v WRM (No 2) at [119]-[121], [124], [126], [148], [166]. The WRM entities derived significant revenue from the scheme: ASIC v WRM (No 2) at [167]-[168]. Their business model was "fundamentally built upon the unconscionable and predatory behaviour" of the WRM entities: ASIC v WRM (No 2) at [172]. In his capacity as a director and the owner of the WRM entities, Mr Fuoco devised and oversaw the scheme: ASIC v WRM (No 2) at [170], [172].
The contraventions by the WRM entities were described by Moshinsky J as "a particularly egregious example of the kind of conduct that the statutory provisions are designed not merely to prevent, but to dissuade and sanction in the strongest terms": ASIC v WRM (No 2) at [145]; see also at [172]. Significantly, his Honour found that there was "a reasonably high likelihood that WRM would engage in similar conduct if not prevented by the Court from doing so", that it was "likely that harm will be caused to the public if WRM is not prohibited from providing financial services", and that there was "potential for WRM to do significant financial damage to clients via its financial services operations": ASIC v WRM (No 2) at [146], [147]; see also at [164]-[166].
That was the context in which Moshinsky J found that it was appropriate to make the Restraint Order against Mr Fuoco: ASIC v WRM (No 2) at [152]. The Restraint Order was clearly made for the protection of the public, which "adds to the question of penalty a dimension that is unusual, in that, in most cases, injunctions and similar orders are protective of some private interest of a litigant": Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; 71 ACSR 279 at [25] (Barrett J). As ASIC submitted, this heightens the seriousness of the contempts committed by Mr Fuoco, which have in fact caused further harm to members of the community against which the Restraint Order was designed to protect.
Further, as was submitted by ASIC:

[127]

(a) Mr Fuoco's conduct in breach of the Restraint Order commenced in March 2019, just over one year after the order was made, and continued for more than four years until shortly before the interlocutory application was filed by ASIC.

(b) The contemptuous conduct was far from accidental or unintentional, and involved a repetition of the same conduct and business model that led to the Restraint Order being made in this proceeding, along with similar restraint orders in this proceeding and other proceedings against corporate entities controlled by Mr Fuoco.

(c) Mr Fuoco was on notice that the business model involved the targeted exploitation of financially vulnerable individuals through unfair and unconscionable marketing practices, but knowingly continued to operate the same business model notwithstanding the terms of the Restraint Order.

(d) Mr Fuoco had overall control of the Advice Business and the Loan Business, and was involved in those businesses at every level of their operation (see paragraph [40] above). He instructed and trained staff in the business, and held regular strategy sessions in which he discussed the business model and processes. Staff reported to Mr Fuoco about the status of client files, the achievement of targets, and the payment of commissions by insurers. Mr Fuoco was personally involved in handling and assessing loan applications made by clients, as well as the process of providing financial advice (including by arranging appointments and communicating with clients and staff about clients' individual circumstances, the financial advice to be given and the financial products that were available). Mr Fuoco was also involved in general operational matters including purchasing "leads", liaising with insurance providers and lenders, appointing directors, communicating with accountants, dealing with complaints, and communicating with government agencies.

(e) ASIC drew particular attention to Charge 15, by which Mr Fuoco was personally involved in the provision of financial produce advice by exchanging WhatsApp messages with a financial advisor in which he disagreed with the advice that was proposed to be given to a client, following which Mr Fuoco arranged for a different financial advisor to provide contrary advice to the client. This was said by ASIC to be a "particularly egregious example" of Mr Fuoco having "descended to a level of engagement with individual clients that was at the heart of what the Restraint Order was designed to prevent [him] from doing: being in any way involved in the provision of financial services to clients".

(f) Mr Fuoco deliberately sought to avoid or defy the operation of the Restraint Order by carrying on the Advice Business and the Loan Business through separate corporate entities, maintaining that he was responsible for the day-to-day operation of the Loan Business (as a credit activity) but was not involved at a meaningful level with the Advice Business (which involved the provision of a financial service). This was a thinly veiled attempt to distance himself from the provision of financial services, when in fact the business operated as one enterprise. The "referral" of clients by Ansa Finance to AFSL Group, State Advice or About Advice was in reality the continuation of the same operation.

(g) Mr Fuoco engaged in conduct designed to obscure his involvement in the businesses, such as the appointment of other persons as directors in order to make it appear as though he was not in control. In so doing, Mr Fuoco actively sought to avoid the intended effect of the restrictions imposed upon him by the Restraint Order, and flouted the spirit and intent of the Restraint Order.

(h) Mr Fuoco disobeyed every limb or aspect of the Restraint Order: the prohibition from carrying on a financial services business (charges 1, 2, 4, 5, 7 and 18); the prohibition from carrying on a business related to financial services (charges 3, 6 and 8); the prohibition from being involved in providing financial product advice (charges 10 to 17); and the prohibition from holding himself as carrying on a financial services business (charge 9). As discussed above, each of those aspects of the Restraint Order were designed to protect the public in different ways.

(i) Mr Fuoco's conduct impacted a large number of vulnerable consumers who obtained insurance through the Advice Business. The affected consumers were financially vulnerable and were specifically targeted as such by Mr Fuoco. This included individuals who were desperate for a loan and who were unable to obtain finance from any other source. Individuals who had applied for a loan were "funnelled" into obtaining financial advice and taking out insurance, incurring substantial advice fees and premiums that would be deducted from their superannuation. Clients typically agreed to take out insurance only because it would increase their chances of obtaining a loan. To this end, Mr Fuoco employed a range of tactics to convince clients to take out insurance, despite the fact that they were only seeking a loan.

(j) The evidence adduced by ASIC contained examples of the impacts on particular clients of the Advice Business and the Loan Business. Those examples illustrate the pressure that was placed on individual clients to roll over their superannuation and to take out insurance in order to obtain a loan. There is also evidence of a financial adviser who worked for State Advice and AFSL Group having become concerned that the advice he was giving was not in the best interests of his clients.

[130]

Mr Fuoco has admitted that he engaged in the contemptuous conduct in order to obtain financial advantage for himself at the expense of clients of the Advice Business and the Loan Business. This is borne out by the evidence before the Court, which reveals that Mr Fuoco's principal focus was to make money for himself from the advice fees and insurance commissions charged to or payable by clients.
Among other things, Mr Fuoco set financial targets and instituted a system by which potential clients were rated according to the likelihood that they would take out insurance, with a particular emphasis on income protection insurance which had higher premiums and commissions. Further, Mr Fuoco exhorted one financial adviser with AFSL Group to increase the rate at which he got clients to agree to take out insurance, and to increase the insurance premiums charged to clients by using an insurance calculator provided by AFSL Group despite the adviser's reservations about the appropriateness of the results produced by that calculator.
Mr Fuoco gave evidence that in around mid-2018, after the Restraint Order was made, he began working in the "regulated credit space" because he had worked in the financial services industry for the majority of his working life, and felt that this was "the only area in which [he] could work which would utilise [his] skill set and allow [him] to earn enough money to support [his] family". He also gave evidence about his financial responsibilities. Counsel for Mr Fuoco submitted that the circumstances which existed at this time ultimately led to him engaging in the conduct that is the subject of the contempt charges, including that he needed to provide for his family during a time when he and his partner were grieving the loss of their stillborn child, as a result of which his partner became mentally unwell and was unable to work for several months.
While I accept that Mr Fuoco's personal circumstances included his financial responsibilities towards his family, it remains the fact that his primary motive for engaging in the conduct in breach of the Restraint Order was for the purposes of financial gain.

[132]

A guilty plea or admission of contempt is a mitigating factor in the assessment of penalty, particularly where the plea or admission is timely: Levi (No 3) at [112] (McKerracher J); World Netsafe at [19] (Spender J). As such, it attracts a discount to the sentences that might otherwise have been imposed in its absence. The significance of a plea or admission is that it saves the time and cost of a contested hearing, indicates a willingness to facilitate proceedings directed to vindicating the Court's authority, and provides some evidence of the contemnor's remorse: Rollinson at [64] (Beech-Jones CJ at CL).
In addition, genuine contrition and a full apology are capable of reducing the penalty, although the court should be wary not "to be beguiled by an offending party's confessions of guilt in a context of susceptibility to significant prison sentences": Australian Competition and Consumer Commission v Hughes (t/as Crowded Planet) [2004] FCA 519; 207 ALR 116 at [34] (Conti J). Thus, the timing and circumstances of any apology will be relevant.
As set out above (at paragraph [66]), Mr Fuoco has not only admitted his guilt of the contempts charged, but has expressed his contrition and remorse in respect of his conduct and offered an apology to the Court and to ASIC. That was accompanied by his voluntary provision of an undertaking to comply with the terms of the Restraint Order on a permanent basis, in circumstances where the order itself was limited to a period of 10 years.
ASIC submitted that Mr Fuoco's admissions and expressions of remorse should not be taken as reflecting any genuine contrition, in circumstances where they were made some time after the contempt proceeding was commenced, and in circumstances where Mr Fuoco is facing a potential custodial sentence. Further, ASIC submitted that Mr Fuoco has "a long history of making admissions in proceedings brought against him and related corporate entities - as well as making accompanying expressions of contrition", and yet he "has nevertheless continued to engage in unlawful conduct, demonstrating a complete lack of genuine remorse". In this regard, ASIC referred to several previous occasions on which it was submitted on behalf of Mr Fuoco that he had "learned his lesson" or "learnt from his past failures", including in the context of a financial services banning order in 2010 and a disqualification from managing corporations in 2016.
Further, in admitting his involvement in the contraventions by the WRM entities that were the subject of the current proceeding, and which led to the Restraint Order made by Moshinsky J, Mr Fuoco swore an affidavit in which he acknowledged his "failings from both a compliance and conduct perspective" and expressed his deep regret for the impacts on individuals who were affected by the scheme. Nevertheless, not long after interlocutory injunctions had been made by Moshinsky J, and while he was still disqualified from managing corporations, Mr Fuoco had commenced carrying on substantially the same business through a new company, Financial Circle. He subsequently pleaded guilty and was convicted of managing Financial Circle while disqualified.
Despite these previous admissions and expressions of contrition or remorse, Mr Fuoco proceeded to engage in conduct in wilful defiance of the Restraint Order over a four-year period. In such circumstances, there is some force in ASIC's submission that Mr Fuoco's expressions of contrition should be regarded as disingenuous.
Nevertheless, I am prepared to give some weight to Mr Fuoco's admissions in the present proceeding. In so far as the admissions were not made until late 2024, Mr Fuoco was not legally represented before then and ASIC had not yet filed its evidence in support of the charges. While the cancellation of the credit licence held by Ansa Finance might have been regarded as inevitable, Mr Fuoco has gone further by giving a voluntary undertaking to comply with the Restraint Order on a permanent basis. In written submissions filed on his behalf, Mr Fuoco acknowledged that he had been "somewhat motivated to admit the charges by the possibility of receiving a lesser penalty than if the matter had run to trial and he was found guilty". Nevertheless, that does not itself prevent the admissions from being treated as a mitigating factor. At the very least, the admissions have spared the Court and ASIC from the time and expense of a contested trial.

[145]

Justice Barrett also observed (at [51]) that a "good behaviour bond" (i.e. suspension of sentence) had not deterred Mr Matthews from the activities giving rise to the charges on which he was being sentenced, and that there was "no reason to think that it would, on this occasion, have any greater deterrent effect" nor "that it would sufficiently register the denunciation that is warranted".

(e) In Australian Securities and Investments Commission v Reid [2002] FCA 84, the respondent breached a previous court order that prohibited him from managing a corporation. The respondent admitted the charge of contempt. He had a previous conviction for contempt arising from an earlier breach of the same order. Having found (at [35]) that a fine would not be appropriate because it would not properly reflect the serious of the respondent's conduct, Kenny J considered that it would have been appropriate to make an immediate custodial order, but for the respondent's contrition and his undertaking to obey the court order in the future. Her Honour therefore considered (at [41]) that "a suspended sentence that requires Mr Reid to observe certain conditions is most appropriate in the circumstances". In circumstances where he had "already had the advantage" of a previous suspended sentence of six months' imprisonment, Kenny J considered that "the sentence must be relatively substantial", and imposed a term of imprisonment of 12 months, suspended for a period of two years on the condition that the respondent abstain from further contravention of the original order.

(f) Mr Reid was again found guilty of contempt of the same order in Australian Securities and Investments Commission v Reid [2005] FCA 1274, following which he was sentenced to imprisonment for nine months: Australian Securities and Investments Commission v Reid (No 2) [2006] FCA 700. This was in circumstances where he had "twice before been charged with and found guilty of contempt, and ordered to be imprisoned": at [16] (Lander J). It may be noted that Lander J (at [23]-[24]) did not consider that it was appropriate to require the respondent to serve both the suspended sentence of imprisonment that was imposed by Kenny J and a further sentence of imprisonment. Rather, he was sentenced separately for his further contempt, taking into account the previous sentence of imprisonment. While recognising that imprisonment is a sentence of last resort, Lander J (at [42]) concluded that it was necessary to require the respondent to serve a sentence of imprisonment "to impress upon him the seriousness of his behaviour".

(g) In Australian Securities and Investments Commission v Eagle Inter-Link Pty Ltd [2002] FCA 1524, the respondent pleaded guilty to a contempt after breaching of an order prohibiting him from inviting or receiving any investment in certain land. Having found that the breach was contumacious and a criminal contempt, Heerey J sentenced the respondent to imprisonment for one month (to be served at the completion of another sentence that he was then serving for various criminal offences). His Honour found (at [18]) that "the serious and deliberate nature of the contempt made a term of imprisonment unavoidable if the authority of this Court is to be maintained".

[146]

In addition to the cases set out above, I refer also to the Full Court's decision in Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387 (Vaysman (2014)). In that case, the primary judge had imposed on the appellant an effective sentence of three years' imprisonment in respect of the contumacious disobedience of previous restraining orders and undertakings given in the proceeding. The primary judge had regarded the charges as "one of the worst cases of contempt to have come before the Court" and as "within the most serious category of criminal contempt cases", involving deliberate and repeated contravention of undertakings and orders over a four-year period: Deckers Outdoor Corporation Inc v Farley (No 8) [2010] FCA 657 at [18] (Tracey J). On appeal, the Full Court reduced this sentence to imprisonment for two years.
While Besanko J (with whom Siopis J agreed) accepted (at [137]) that the appellant's conduct was "a most serious contempt of court", he concluded that the sentence of three years' imprisonment was manifestly excessive, being "three times as long, or at least twice as long", as the sentences that had been imposed in other cases. His Honour proceeded (at [138]-[144]) to resentence the appellant. Having regard to the well-known matters to be taken into account when determining the penalty for a contempt of court, Besanko J concluded that the contempt was "very serious" and warranted a sentence of two years' imprisonment. In reaching this conclusion, Besanko J found that the conduct was "deliberate, serious and carried out over a substantial period of time", in circumstances where the appellant had been "motivated by sheer greed" with "no respect for the rights of others or the authority and orders of the Court": at [144].
Although reaching his conclusion on a slightly different basis, Dowsett J also held that the appellant's sentence ought to be reduced. His Honour agreed that the appellant's conduct amounted to a very serious contempt that "constituted a serious and sustained attack on the legitimacy of the administration of justice in this country" which "called for condign punishment": at [41], [44]; see also at [65]. In particular, the conduct "involved sustained contempt over a lengthy period" (at [46]). However, Dowsett J considered that it was necessary to reduce the sentence of three years imprisonment to reflect the fact that, in the substantive proceedings, the appellant had been ordered to pay additional damages in connection with the same conduct that was the subject of the contempts. Accordingly, in the particular circumstances, Dowsett J would have imposed a sentence of imprisonment for two years and three months: at [67].
Among other things, the Full Court in Vaysman (2014) had regard to the circumstances and penalties that had been imposed in a range of comparable cases, particularly those in which there was "repeated misconduct over a relatively long period of time": see at [46]-[58] (Dowsett J); see also at [128]-[137] (Besanko J). In relation to the use of comparable cases, Besanko J stated (at [126]):

[152]

It remains to determine the appropriate penalty to be imposed in respect of Mr Fuoco's contempts, having regard to all of the matters set out above.
I consider that the conduct of Mr Fuoco amounts to a very serious contempt of court. The conduct involved the deliberate and persistent breach of the Restraint Order over a lengthy period, motivated by personal financial gain, with significant impacts on financially vulnerable individuals who were within the protection of the Restraint Order. The conduct was engaged in by Mr Fuoco with full knowledge of the prohibitions imposed by the Restraint Order. I have taken into account Mr Fuoco's admissions together with his expressions of remorse and apologies, along with his personal circumstances.
ASIC submitted that Mr Fuoco's contemptuous conduct warrants sanctioning in the strongest terms, and that it would be appropriate to sentence Mr Fuoco to a term of imprisonment. In the course of oral submissions, counsel for Mr Fuoco indicated that she was instructed that he did not oppose that disposition sought by ASIC, although she submitted that any sentence of imprisonment should be wholly suspended. As Gray J noted in Vaysman (at [54]), in response to a similar submission, "[t]he fact that counsel making a plea in mitigation of sentence might concede that imprisonment is appropriate does not absolve the sentencing judge from the obligation to be satisfied that this is the case before such a sentence is imposed".
In the present case, I consider that it is necessary that Mr Fuoco be sentenced to a term of imprisonment, and that any alternative penalty would not provide an appropriate vindication of the authority of the Court nor serve the purposes of general and specific deterrence. In particular, the imposition of a fine would be inadequate, particularly in circumstances where Mr Fuoco would not have the capacity to pay any fine, and has failed to pay pecuniary penalties and costs that have previously been ordered. In all of the circumstances, I consider that the appropriate sentence is imprisonment for an aggregate period of 12 months.
To the extent that it is necessary to give an indication of the sentence for each of the separate charges, ASIC explained the basis on which the charges had been separated by reference to the different sub-paragraphs of the Restraint Order, different time periods, and the evidence given by particular witnesses. To that end, ASIC provided the Court with an "aide memoire" which broke down the charges and indicated the supporting evidence relevant to each charge.

[157]

The power to punish for contempt includes a power to suspend on condition any sentence of imprisonment that it might impose: Australian Securities and Investments Commission v Matthews [1999] FCA 803; 32 ACSR 404 at [29] (Sackville J). In Hughes v Australian Competition Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277 at [52], French, Emmett and Dowsett JJ referred to Morris v Crown Offıce [1970] 2 QB 114 at 125, where Lord Denning described the common law powers for criminal contempt as encompassing "a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon", and noted that "[t]hese powers enable the judge to give what is, in effect, a suspended sentence".
The considerations that may be taken into account in determining whether a sentence of imprisonment should be suspended overlap with the factors that are relevant to determining the penalty (including the appropriate length of any period of imprisonment), and include "the nature of the offence, its objective seriousness, the need for specific or general deterrence and the subjective circumstances of the offender": Rollinson at [90] (Beech-Jones CJ at CL). However, the inquiry is different, in that it may involve a greater focus on matters personal to the contemnor - see, e.g., the submissions made in Rollinson at [97].
As was recognised in Rollinson at [104], the suspension of a sentence of imprisonment renders the punishment "appreciably more lenient", but the conditions of any suspension may also serve a coercive purpose of encouraging future compliance with the orders of the court. Thus, suspending imprisonment for a specified period on condition that the contemnor comply with the court's order may provide "a significant incentive for the contemnor to comply in circumstances where he has been unable to do so to date", and afford the contemnor "one last opportunity to comply with the orders made against him": Rollinson at [104] (Beech-Jones CJ at CL). Similar comments were made in Australian Securities and Investments Commission v Matthews [1999] FCA 803; 32 ACSR 404 at [30], where Sackville J regarded such an order as having "the added virtue ... of driving home the importance of abiding by orders made in the principal proceedings".
Of course, it might be said that suspending a sentence of imprisonment for contempt arising from wilful disobedience of court orders on condition that the person comply with those orders tends to reduce the punishment almost to nothing, at least where the sentence is wholly suspended on such a condition. The contemnor would ordinarily remain bound by the original orders in any event, such that the condition on which the sentence of imprisonment is suspended would require no more from the contemnor than he or she is already bound to do. Any further breach of the original orders would itself be likely to constitute a contempt of court as well as breaching the conditions on the suspended sentence. Nevertheless, the possibility that the sentence of imprisonment imposed by the court might be enlivened, and a warrant for imprisonment might be executed, upon a failure to comply with the original orders provides an additional incentive to comply with those orders, at least if that sentence of imprisonment is required to be served independently of any charge or sentence in respect of the further contempt of court.
This would reflect the position at common law under which, as was noted by Lander J in Australian Securities and Investments Commission v Reid (No 2) [2006] FCA 700 at [22], "if a person is sentenced to imprisonment and the sentence is suspended upon the person being of good behaviour for a period of time and the person then commits a further criminal offence, the person can be called upon to serve the original suspended sentence and to serve a further sentence of imprisonment in respect of the later criminal offence". However, in that case, Lander J did not consider that such an approach would be appropriate in relation to sentencing for contempt, "where the Court is imposing a sentence to uphold the authority and dignity of the Court": ibid. Accordingly, his Honour concluded that it would be inappropriate to require the respondent in that case to serve the earlier sentence of imprisonment that had been suspended and a further sentence of imprisonment for the later contempt: at [23]-[24]. Rather, a separate sentence of imprisonment was imposed for the later contempt (which, although not suspended, was shorter than the sentence imposed by Kenny J for the previous contempt), and the earlier orders were discharged in order to remove the threat of further imprisonment for any other contempt which might have been committed during the two-year period for which the sentence was suspended: at [44]-[45].
In my view, the common law approach would generally be more likely to give effect to the intention of the original sentence, by ensuring that the contemnor must serve his or her sentence of imprisonment for the contempt in the event of any further breach of the court's orders. If that further breach also amounts to a contempt of court, a charge can be brought and dealt with separately. While it would undoubtedly be appropriate to have regard to the original sentence of imprisonment when sentencing the contemnor for any further contempt, that does not mean that the former should be ignored or subsumed in the latter. Each sentence would relate to a different contempt.
It is also possible for a sentence of imprisonment for contempt to be suspended on condition that the contemnor be generally of good behaviour during a specified period, rather than simply refrain from contravening the original orders that were the subject of the contempt. This would give rise to additional obligations on the contemnor, over and above the obligations under the original orders. However, in Levi (No 3) at [139]-[140], McKerracher J was disinclined to impose such a condition on the basis that both the facts of the contempt and the antecedents of the respondent involved "activity concerning false representations pertaining to businesses", and the conditions on which the sentence of imprisonment was suspended "should be similarly and more precisely confined". That is not to say that it might not be appropriate on the facts of a particular case to suspend a sentence of imprisonment for contempt on the condition that the contemnor be of good behaviour, including by giving a bond or security: see e.g. Australian Securities and Investments Commission v Matthews [2001] NSWSC 735; 39 ACSR 110 at [51] (Foster AJ).
Where the Court suspends a sentence of imprisonment, the Court also has a discretion as to the period of that suspension. It may be accepted for present purposes that an order should not be made to suspend a term of imprisonment for an indefinite period, and that "[t]here must come a time when a person who is the subject of a conditional suspension of a term of imprisonment is no longer exposed to that sanction": Hughes at [56] (French, Emmett and Dowsett JJ). Similarly, the period of suspension should not be inordinately long or disproportionate to the length of the sentence: cf. Australian Securities and Investments Commission v Reid [2005] FCA 1274 at [17] (Lander J).
In the present case, Mr Fuoco has submitted that any sentence of imprisonment should be wholly suspended, relying on the various circumstances in mitigation of penalty. ASIC submitted that it would not be inappropriate to suspend any sentence of imprisonment, including by wholly suspending that sentence.
I consider that it is appropriate in the circumstances for the sentence of imprisonment imposed on Mr Fuoco to be wholly suspended for a period of two years on the condition that, during that period, he must comply with the Restraint Order and the terms of his undertaking to the Court (which requires compliance with the Restraint Order and the credit activities banning order made under ss 80 and 81 of the National Consumer Credit Protection Act 2009 (Cth)). Any further contravention of the Restraint Order in the next two years will not only be a breach of the conditions of the suspension, but would potentially also constitute a further contempt of that order. After the two-year period of suspension, the prohibitions under the Restraint Order, including as extended by the undertaking given by Mr Fuoco, will continue to operate. As such, any breach of that undertaking may also give rise to a potential contempt of court
In reaching this conclusion, I have given significant weight to Mr Fuoco's plea of guilty and full admissions, which have saved considerable time and expense that would have been involved in any contested trial of the charges, together with his apologies and expressions of remorse. I have also had regard to his personal circumstances, including his age, and his financial and emotional responsibilities for his family. While I have given serious consideration to a partial suspension, so as to require Mr Fuoco to serve at least some part of the term of imprisonment immediately, on balance I consider that it is appropriate that the term of imprisonment be wholly suspended.
In relation to the form of order giving effect to the suspension of the term of imprisonment, there are past examples in this Court where orders have been made for a warrant of imprisonment to issue, and for that warrant to "lie in the Registry to the intent that it not be executed" on the conditions and during the period of suspension: see e.g. Australian Securities and Investments Commission v Reid [2002] FCA 84 (Kenny J); Australian Securities and Investments Commission v Matthews [1999] FCA 803; 32 ACSR 404 (Sackville J); Australian Securities and Investments Commission v Matthews [2001] NSWSC 735; 39 ACSR 110 (Foster AJ). Orders in that form were discussed by the Full Court in Hughes at [52] (French, Emmett and Dowsett JJ), with reference to the practice adopted in Lee v Walker [1985] QB 1191 at 1199-1200:

Australian Securities and Investments Commission v Wealth & Risk Management Pty Ltd

At a glance

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Judgment (164 paragraphs)

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Legislation Cited (4)

Cases Cited (16)