Commissioner for Fair Trading v Oliver [2004] NSWSC 722 | Case summary

JUDGMENT 1 HIS HONOUR: The Commissioner for Fair Trading applied on notice of motion filed on 28 November 2003 for the following orders: "1. That the Respondent be adjudged guilty of contempt of Court and that he be dealt with in respect of that contempt in such manner as the Court considers proper. 2. That the Respondent pay the costs of the Plaintiff in these proceedings as agreed or assessed. 3. Orders as the Court considers fit." 2 The contempt proceedings concern the alleged non compliance with orders made in this court on 10 December 2002. The relevant orders were in these terms: "1. Pursuant to s.65 of the Fair Trading Act 1987 that the first defendant be restrained until further order from conducting or being engaged in (whether [without in any way limiting the scope of the foregoing] in a personal capacity as a sole trader, in a partnership, as an employee, through another person, through the agency of another person, through the agency of a chain of other persons, through a company [whether or not that company is one of which the defendant is an officer and whether or not that company is one of which the defendant is a shareholder], through the agency of a company [whether or not that company is one of which the defendant is an officer and whether or not that company is one of which the defendant is a shareholder], or otherwise) any of the following types of businesses: (a) publisher (in or through any medium, including [without limitation] print, telephonic services, television, radio, the internet and e-mail; (b) advertising agent; (c) collector of debts or purported debts (howsoever arising or allegedly arising). 2. Pursuant to s.65 of the Fair Trading Act 1987 that the first defendant be restrained until further order from conducting or being engaged in (whether [without in anyway limiting the scope of the foregoing] in a personal capacity, as a sole trader, in a partnership, as an employee, through another person, through the agency of another person, through the agency of a chain of other persons, through a company [whether or not that company is one of which the defendant is an officer and whether or not that company is one of which the defendant is a shareholder], through the agency of a company [whether or not that company is one of which the defendant is an officer and whether or not that company is one of which the defendant is a shareholder], or otherwise) the following: (a) soliciting the placing of any advertising; (b) invoicing for any advertising; (c) demanding or requesting any payment for any advertising; (e) asserting any right to payment for any advertising; (f) invoicing for payment for any good[s] or service which was not ordered or requested in advance of being provided; (g) demanding or requesting any payment for any good[s] or service which was not ordered or requested in advance of being provided; (h) asserting any right to payment for any good[s] or service which was not ordered or requested in advance of being provided; (i) invoicing for payment for any good[s] or service which has not already been provided; (j) demanding or requesting any payment for any good[s] or service which has not already been provided; (k) asserting any right to payment for any good[s] or service which has not already been provided; (l) making any commercial publication (in or through any medium, including [without limitation] print, telephonic services, television, radio, the internet and e-mail); (m) using, or allowing or suffering the use by any person of, the publication names Statewide Fightfighters [sic] and National Police Bulletin or any similar name; (n) training any person in respect of advertising or publishing; (o) training any person working in the advertising industry; (p) training any person working in the publishing industry; (q) offering or providing any consultancy service to any person or business in the advertising industry; (r) offering or providing any consultancy service to any person or business in the publishing industry." 3 The statement of charge filed pursuant to Pt 55 r 7 of the Rules of Court charged the defendant with the following breaches of the orders set out above: "1. That Michael Geoffrey Oliver between 12 December 2002 and 31 August 2003 knowingly did breach an order of the Court (namely Order 1 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - engage in the business of publisher in that he did engage in a business which published an edition of the purported magazine National Police Bulletin. 2. That Michael Geoffrey Oliver between 12 December 2002 and 31 August 2003 knowingly did breach an order of the Court (namely Order 1 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - engage in the business of advertising agent in that he did engage in a business which solicited, designed and placed advertisements for and in the purported magazine National Police Bulletin. 3. That Michael Geoffrey Oliver between 16 and 22 January 2003 knowingly did breach an order of the Court (namely Order 2 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - send to William Fowell and Christopher Simpson (trading as Le Bijoux Coffee Shoppe) a document which was an invoice for advertising, which demanded payment for advertising, which asserted a right to payment for advertising, which was an invoice for a good or service which had not been ordered or requested, which demanded payment for a good or service which had not been ordered, which asserted a right to payment for a good or service which had not been ordered or requested, and which used the publication name National Police Bulletin. 4. That Michael Geoffrey Oliver between 3 and 9 May 2003 knowingly did breach an order of the Court (namely Order 2 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - send to Janet Ailleen Murdoch and Peter John Murdoch (trading as Peter Murdoch Irrigation ) a document which was an invoice for advertising, which demanded payment for advertising, which asserted a right to payment for advertising, which was an invoice for a good or service which had not been ordered or requested, which demanded payment for a good or service which had not been ordered, which asserted a right to payment for a good or service which had not been ordered or requested, and which used the publication name National Police Bulletin. 5. That Michael Geoffrey Oliver between 8 and 14 March 2003 knowingly did breach an order of the Court (namely Order 2 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - send to Tozer International Pty Ltd a document which was an invoice for advertising, which demanded payment for advertising, which asserted a right to payment for advertising, which was an invoice for a good or service which had not been ordered or requested, which demanded payment for a good or service which had not been ordered, which asserted a right to payment for a good or service which had not been ordered or requested, and which used the publication name National Police Bulletin. 6. That Michael Geoffrey Oliver between 13 and 19 March 2003 knowingly did breach an order of the Court (namely Order 2 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - send to Tozer International Pty Ltd a document which was an invoice for advertising, which demanded payment for advertising, which asserted a right to payment for advertising, which was an invoice for a good or service which had not been ordered or requested, which demanded payment for a good or service which had not been ordered, which asserted a right to payment for a good or service which had not been ordered or requested, and which used the publication name National Police Bulletin. 7. That Michael Geoffrey Oliver between 7 and 13 August 2003 knowingly did breach an order of the Court (namely Order 2 made on 10 December 2002 and entered on 12 December 2002 in proceedings 12935 of 2002) in that he did - through AAA Advertising Pty Ltd and its employees (or contractors) - send to Hunter Plant Operating Training School Ltd a document which was an invoice for advertising, which demanded payment for advertising, which asserted a right to payment for advertising, which was an invoice for a good or service which had not been ordered or requested, which demanded payment for a good or service which had not been ordered, which asserted a right to payment for a good or service which had not been ordered or requested, and which used the publication name National Police Bulletin." 4 The defendant pleaded guilty before me to each of the charges of contempt in the above statement of charges. 5 The following statement of facts concerning the contempts charged was tendered as Exhibit A (and I use the paragraph numbers from that document): "65. The summons in this matter was filed on 28 October 2002. Also on 28 October 2002 a notice of motion seeking interlocutory orders pursuant to s.65 was filed. On 29 October 2002 Mr Oliver was served with the summons, notice of motion and other material, which described in detail the matters summarised above at paragraphs 4, 5, and 7 to 64 (in particular the affidavit of L. Cornish and the brief of evidence mentioned therein as Exhibit LAC 1 and Exhibit LAC 2). 66. The matter came before the Court on 7 and 15 November and 9 and 10 December 2002. In the course of the proceedings an 'Outline of the Case Brought Against the Defendants' was prepared, filed and served: it summarised the allegations of the plaintiff in terms substantially similar to paragraphs 4, 5 and 7 to 64 above. On 10 December 2002 the Court granted interlocutory injunctions against Mr Oliver and APA; an undertaking was received from Samantha Oliver. 67. The orders provided [and the statement of facts recorded the content of the orders I have recorded in para 2 above]: The establishing and control of AAA 68. The actions constituting the seven contempts of this Court were done through AAA. Mr Oliver organised the establishing of that company, organised the lease of the premises used by that company and was at all material times in control (including the day-to-day control) of the company. Establishing the company 69. On 15 November 2002 - that is, after the present proceedings had begun but before any injunction had issued - Mr Oliver asked Bruce Napthali, accountant, to establish a company for a 'friend'. Mr Oliver supplied the relevant information, including that Mr Kristan was to be the sole director of the new company and that the name of the company was to be 'AAA Advertising Pty Ltd'. Later that day Napthali instructed BH Shelf Companies Pty Ltd ('BH') to establish the new company. BH advised that the name 'AAA Advertising' was unavailable. A company using the name 'Triple A Advertising' was established. On 18 November 2002, having received the relevant documentation, Napthali provided the relevant documentation to Mr Oliver and was paid by Mr Oliver $1,000 cash. The director 70 Mr Kristan has known Mr Oliver for about ten years. In July 2002, a time when Mr Kristan was unemployed, Mr Oliver asked Mr Kristan to become the director of APA. He had no regular involvement in the conduct of the affairs of APA. In November 2002 (after the Australian Taxation Office had made a demand of the company and after the present proceedings had been commenced) Mr Oliver procured from Kristan the signing of some documents: in this respect he told Mr Kristan that the directorship was to be 'transfer[red]' from APA to AAA and that Mr Kristan would be the shareholder of AAA. 71 Mr Kristan was told by Mr Oliver not to attend AAA's premises unless specifically asked by Mr Oliver. However, Mr Kristan did visit AAA's premises at Station Street, West Ryde, about three times to sign documents. There he saw 'three girls' working in administration and 'three or four salespeople working on the phones, ringing up people and extracting money for advertising in magazines, one called National Police Bulletin and one called State Wide Fire Fighters.' The premises and other facilities of AAA 72 The premises Unit 2, 2-6 Station Street, West Ryde are rented through Richardson and Wrench. Mr Oliver organised the lease, purporting to do so 'on behalf of' his son, who was said by Mr Oliver to be the director of AAA. Mr Oliver executed the lease as guarantor and provided a cheque to cover the bond and one month's rent. At a later time he organised another known payment of rent. 73 The invoices issued by AAA use the address 8/12 Blenheim Road, North Ryde (which is a private post box), and the phone number (02) 9807 8303. One of the calls Mrs Murdoch received came from 9807 8418 and the other two came from 9807 8303. Mr Oliver was in effective control of all the facilities used by AAA. He also was in charge of staff and hired the bookkeeper. 74 Mr Oliver was a signatory to the bank account used by AAA, signed some of its cheques and controlled the company's finances. Bank records indicate that the bank account of AAA was the same account as that previously used by APA - it merely had its name changed. Two Customer Record Cards - dated 18 March and 16 April 2003 - record that Mr Oliver was a signatory to the account, showing not merely that Oliver did not remove his name from the APA account but that he renewed his role; the cards assert that Mr Oliver is 'Director' (18 March) and 'Manager' (16 April) of AAA. The activities of AAA 75 Four examples illustrate AAA's activities and give rise the seven charges of contempt of court. Le Bijoux Coffee Shoppe 76 William Fowell (commonly known as Gus) and Christopher Simpson are, in partnership, the proprietors of Le Bijoux Coffee Shoppe in Bowral. They had advertised their business in NSW Police News in January 2003. On 14 January 2003 Fowell received a call from a man purporting to be 'Steve Murray…from the National Police Bulletin'. Murray claimed that 'you' had agreed to take out an advertisement. This claim was untrue (at least in so far as it implied agreement to take out an advertisement in National Police Bulletin ). On 18 January 2003 Fowell received a call from 'Nicola…calling on behalf of Steve Murray to confirm your booking'; Nicola said that an invoice would be posted. On 21 January 2003 Fowell received an invoice demanding that $359.99 be sent to 8/12 Blenheim Road, North Ryde. The invoice was headed APA and noted that APA's telephone number was 02 9807 8303 and fax number was 1800 687 221. The invoice falsely claimed that the advertising had been authorised by 'GUF RBIJOUX'. 77 By arrangement with the Department of Fair Trading Le Bijoux paid the invoice by cheque so that the cheque could be traced. The cheque was delivered to 8/12 Blenheim Road, North Ryde and was later deposited into AAA's account. Peter Murdoch Irrigation 78 Janet and Peter Murdoch are the proprietors of Peter Murdoch Irrigation. Only they are authorised to buy advertising. On 6 May 2003 Mrs Murdoch received a call from someone purporting to be 'Steve Jeffries…from the Police Bulletin'. The caller claimed (falsely) 'I was talking to your husband about an ad in the Bulletin for $360 a year and I'm just following up on it.' The caller then sought the Murdochs' 'mailing details', which were provided. The caller then asked Mrs Murdoch - for her 'protection' - to nominate a password. The caller said that '[i]n about an hour a girl from our office will ring just to check your details.' About five minutes later a female rang Mrs Murdoch, claimed to be calling from 'the Police Bulletin' and claimed to be 'just confirming your details'. The female caller concluded with 'That will be three hundred and fifty dollars which you'll be invoiced for. Thank you.' As a result of these calls, Mrs Murdoch mistakenly believed that her husband had previously agreed to purchase advertising, but he had not. 79 On 8 May 2003 the Murdochs received from AAA an invoice demanding that $359.99 be sent to AAA at 8/12 Blenheim Road, North Ryde (phone 02 9807 8303; fax 1800 687 221). The invoice falsely asserted that authorisation for the advertising had been given by 'JAN MURDOCH'. The invoice was accompanied by an advertising proof which was very similar to an advertisement the Murdochs had previously placed in the Yellow Pages . The Murdochs refused to pay. 80 On 14 May a female from AAA rang Mrs Murdoch to chase payment. When advised by Mrs Murdoch that there would be no payment because the Murdochs thought the invoice was a scam and that that [sic] the matter was in the hands of the police, the caller became aggressive and said 'Well it's got nothing to do with the Police, this is the national bulletin!' 81 Reverse call charge records have been obtained to identify which telephone services were used to make the three calls which Mrs Murdoch received. Two of the calls came from (02) 9807 8303 and one came from (02) 9807 8418. Tozer International 82 Stephen Tozer is the sole director of Tozer International Pty Ltd. His business advertised in the Child Safety Handbook in October 2002. Around November or December 2002 Mr Tozer started receiving phone calls from people representing National Police Bulletin . On each occasion the caller claimed that Tozer International owed money for advertising. Mr Tozer has never authorised any advertising and so declined to act on the calls. On or about 10 February 2003 Mr Tozer received a letter claiming that $360 had been payable on 11 November 2002. The letter was on the letter head of APA - National Police Bulletin. 83 On or about 4 March 2003 Mr Tozer was telephone[d] by 'David' of AAA, who was chasing payment of an overdue account. Mr Tozer said that he knew nothing about it but invited the caller to send a copy of the magazine so he could 'look it over'. Following the conversation Mr Tozer received a fax from National Police Bulletin , being an invoice and advertising proof. Mr Tozer did not respond. After further telephone conversations with people from National Police Bulletin Mr Tozer received two further faxes, both identical except that one was dated 13 March and the other 18 March: these were now printed on AAA - National Police Bulletin letterhead and falsely claimed that Mr Tozer had authorised advertising costing $327.27 plus GST, but they also recorded that the invoice had been paid. 84 About a week after the second of these invoices was received Mr Tozer received by post a copy of National Police Bulletin . Mr Tozer continued to receive telephone calls from AAA chasing the amount claimed to be owing, until he advised that he had received 'quite a few calls about you people…[from] various government departments' (after which AAA stopped calling him). 85 The magazine sent to Mr Tozer had an advertisement for Tozer International on page 46. It noted that the publisher was APA, that one of the advertising managers was 'Michael Harvey' (an alias of Mr Oliver). Hunters Plant Operating Training School 86 On 7 August 2003 Graham Hills, Business Manager of Hunter Plant Operating Training School ('HPOTS'), received a telephone call a male purporting to be 'Andrew Turner…from National Police Bulletin'. The caller said that he 'just wanted to confirm an advertisement your company ordered with us.' Hills said that he hadn't ordered an advertisement and would check with HPOTS's General Manager. The caller said 'I just need to get a password from you to make sure we're not mistaken for some of those others like blue light and that. If we get a password you'll know that we're kosher.' Mr Hills proposed the password 'grader'. 87 On 12 August 2003 AAA issued to HPOTS an advertising proof and an invoice on National Police Bulletin letterhead. The invoice falsely asserted that authority had been given by 'GRAEME HILLS'. Mr Hills rang a telephone number appearing on the invoice and left a message for Andrew Turner to call him. When 'Turner' returned the call he untruthfully told Mr Hills that Leanne Rigby authorised the advertisement (Ms Rigby was an HPOTS employee, but not one who had authorised any advertising)." 6 The defendant gave evidence on the hearing of these proceedings for contempt. He said that he engaged a solicitor for the purposes of the hearing at which the orders were made by this court on 10 December 2002 and that counsel appeared for him at that hearing. The defendant had no recollection of being present at court at the time the orders were made, but he said his solicitor explained the orders to him. The defendant said that the company referred to as AAA was actually formed before the making of the orders and it succeeded the company referred to as APA. The defendant, by way of explanation for his activity following the making of the orders, said that he kept the business AAA running because he did not want the employees out of work. 7 The defendant asserted that he had no real involvement in the activity of AAA and that when he went to work all he did was to occupy himself with crossword puzzles. I do not accept the evidence that the defendant gave to that effect, nor do I accept that his motivation in continuing with the business was to provide employment for those who had worked in the business prior to the restraining orders. The defendant gained financial reward out of the business and, to my mind, the conclusion is inescapable that this objective motivated him to continue with the subject business activities after 10 December 2002. 8 The court must take a serious view of the breaches of the court orders committed by the defendant. Whilst the defendant sought in his evidence to downplay the significance of his role in the activities of AAA, the agreed facts stated in Exhibit A disclose that the defendant was involved in establishing the company AAA and that he organised the lease of the premises by that company. Further, Exhibit A discloses that he was in control of the company. Each of the activities charged defied the terms of the orders of this court. 9 Objectively then these contempts were very serious. 10 I turn to consider the subjective features in this case. 11 The defendant, who was born in England on 13 December 1945, came to Australia in 1975. He has been married three times and has six children. The youngest of the children is a son, Michael, who is aged twelve years and who suffers from a significant physical handicap. 12 The defendant was a butcher by trade. He said he became involved in advertising and publishing some seven years ago, and has been responsible for a number of publications in respect of which he has derived income by attracting clientele that advertise in the publications. It was activity of this type, of course, which attracted the attention of the Commissioner for Fair Trading. 13 I accept that the defendant has no criminal record and the circumstance that he has pleaded guilty to these contempt charges is to be weighed in his favour. Consideration is to be given not only to the utilitarian value of his acknowledgements of guilt but also to the contrition which those acknowledgements evidence. The defendant expressed his apologies in his evidence and acknowledged the stupidity of his behaviour. His plea shows a willingness to facilitate the processes of justice. 14 The defendant gave evidence as to health problems. In early adulthood the defendant was a professional boxer and he said that in this occupation he suffered injuries to his head and became aware of memory difficulties. This prompted him to give up that professional activity. 15 The defendant said that he has suffered from depression in more recent years and has had suicidal thoughts in the last twelve years. He has also abused alcohol, although he has curbed his drinking in recent weeks. 16 The defendant gave evidence of having sustained injury when assaulted some few years ago, and later in a fall at a club. 17 A number of medical reports were tendered in the defendant's case. The earliest of these reports is a report from Dr Gates, a plastic surgeon, who reported in April 2002 that he saw the defendant after the defendant had fractured his right orbit. The defendant at that time was complaining of memory loss. Dr Gates referred the defendant to Dr Buckley, a specialist physician in rehabilitation medicine. 18 Dr Buckley reported to the defendant's solicitors in February 2003. Dr Buckley recorded a history that the defendant gave him of having had a fall at a bowling club, and it seems that this report was given for medico-legal purposes in contemplation of a civil action arising from the alleged fall. Dr Buckley thought, on the history given and following his examination, that the defendant had suffered some brain injury in the fall. 19 An x-ray report dated 6 May 2002 was tendered. In that report Dr Dutt wrote that a CT scan of the brain had failed to clearly demonstrate any specific abnormality, "except mild dilation of the lateral ventricles and the sulci due to aging process". 20 The defendant says that at the time of the commission of these contempts he was suffering from depression and impaired memory. Dr Amano reported that the defendant has been under his care as a consultant psychiatrist since January 2003. On 8 December 2003 Dr Amano wrote that the defendant remained significantly depressed and that this impaired his cognitive function. In a later report of 20 June 2004, Dr Amano recorded that the defendant had been admitted to the Northside Clinic in January 2003 with suicidal ideation and suffering from depressive illness. Dr Amano has continued to see the defendant since that time and found him to be markedly depressed as recently as 31 May 2004. Dr Amano concluded his report: "Mr Oliver's severe cognitive problems and marked depression have resulted in much turmoil for both his business and personal life." 21 Mr Machlin is a consultant psychologist and he assessed the defendant in July 2004, furnishing a report dated 22 July 2004. Mr Machlin reported: "…psychometric testing indicated there is a high chance he suffers a degree of cognitive impairment for which further neuropsychological assessment is recommended. Multiple factors could have contributed to any impairment he might suffer, given his history of boxing, ongoing alcoholism, and the recent impact of both his head injury in 2002 and the severe depression that followed. The features of any impairment are subtle, given his generally astute presentation, and would require specialised neuro-psychological assessment to identify more clearly in nature and impact." 22 Whilst I accept that the defendant has suffered from and is continuing to suffer from depression and impairment of memory, it was not suggested that these handicaps prevented him from being aware of the terms of the court orders. Nor was it suggested that these handicaps prevented him from appreciating the significance of the orders. I find that there have been deliberate breaches of those orders. 23 In Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Kirby P said (at 314): "A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741." 24 Because a conviction of contempt is criminal in nature, punishment for contempt of court attracts the application of sentencing considerations which are generally applicable. Hence it is appropriate to have regard to the provisions of the Crimes (Sentencing Procedure) Act 1999. I should therefore have regard to s 21A of the statute. None of the features specified in s 21A(2) is apt but what assumes particular importance is to deter the defendant from a repetition of this sort of behaviour and also others from committing similar contempts. Moreover, the conduct of the defendant is to be denounced in an emphatic way by the sentence which is imposed. It has to be emphasised that the particular purpose to be served in the punishment of those guilty of contempt is to ensure "the undisturbed and orderly administration of justice in the courts according to law." (See Maniam supra). 25 I have regard for the purposes of s 21A(3) to the defendant's plea of guilty and I have regard to all the subjective features of this case which I have reviewed earlier. 26 I have regard to the utilitarian value of the defendant's plea and reduce the sentence I would otherwise have imposed by fifteen percent because of that plea. 27 In Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 I referred to a number of cases dealing with the punishment of contemnors. Of course, as I observed, the penalties varied significantly from case to case. I have also been referred to Director General of the Department of Fair Trading v Yang [2002] NSWSC 754, Department of Fair Trading v O'Keefe [2002] NSWSC 398 and to Director General of the Department of Fair Trading v Finnie (unreported, Graham AJ, 5 December 1997). 28 Each case must, of course, attract attention to its particular objective and subjective features, and no useful purpose would be served by reviewing those earlier cases in this judgment. My task is to determine what is appropriate by way of penalty in the present case. I have concluded that the objective seriousness of the contempts that have been committed is such that I must impose a term of imprisonment. Technically there are a number of contempts to be punished but, ultimately, I must also have regard to the principle of totality. 29 In Jando (supra), I determined that the court, when imposing punishment for contempt, could direct that any sentence be served by way of periodic detention if this was considered appropriate. 30 There is in this case a pre-sentence report dated 23 July 2004 in which it is stated that the defendant has been assessed as suitable for periodic detention for the purpose of s 66 of the Crimes (Sentencing Procedure) Act and I note that the defendant has signed an undertaking pursuant to s 66(1)(f). 31 In this case I have decided that since there have been seven discrete contempts charged, seven discrete sentences should be imposed, and that those sentences should be served cumulatively. In respect of the first charge, the sentence to be imposed is imprisonment for two months. A similar sentence will be imposed for the second charge. In respect of the third charge, the sentence to be imposed is imprisonment for one month. A similar sentence will be imposed in respect of each of the fourth, fifth, sixth and seventh charges, so that altogether, allowing for accumulations of those sentences, the defendant will be sentenced to nine months imprisonment. In imposing those sentences, and in accumulating them, I have regard to the principle of totality. 32 I do consider it appropriate to direct that each sentence be served by way of periodic detention, and having regard to s 70 of the Crimes (Sentencing Procedure) Act, the earliest of the sentences is to date from 27 August 2004. Having regard to the fact that the sentences are to be served by way of periodic detention and also having regard to the provisions of s 46 of the Crimes (Sentencing Procedure) Act, I do not set any non parole period.

Commissioner for Fair Trading v Oliver

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Judgment (15 paragraphs)

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