Submissions
64The Council has submitted that Mae's contempt is of the most serious kind - contumacious, defiant, deliberate, flagrant, and sustained - and should lead to a custodial sentence, with or without a fine, plus an order for Council's legal and investigation costs to be paid on an indemnity basis, in order to serve the need for both general and specific deterrence (see Pelechowski, and Tp23).
65Mr Killalea specifically conceded (Tp29, L8-9): "I can't cavil with my friend's submission that it's the most serious contempt".
66Under s 5 of the CSP Act, the court must not impose a sentence of imprisonment unless it concludes, after a full consideration of all punishment options, that no alternative penalty is appropriate.
67Mr Wright drew attention to some aggravating factors disclosed by the evidence:
(1)(Tp25, Ll12-14) "he has gone out of his way to attempt to avoid the consequences of his conduct and to go to extraordinary lengths in attempts to leave the country, for example".
(2)Mae's non-compliance with the orders was motivated by, and led to, substantial financial gain (rents of $1800 per week until May 2010, and $1350 thereafter - Tpp12-13).
(3)(Tp26, LL5-12) "There are in my submission a number of aggravating circumstances in the matter, including the conduct surrounding the reaction of the defendant to the judgment, the persistent avoidance of compliance, the need to issue a warrant for arrest and to pursue it over a period of years. In that period the fact that the defendant, notwithstanding being aware of the orders, having disregarded them, having avoided the council and avoided the sheriff, continued to advertise the premises as a boarding house and continued to receive income from it throughout the period."
(4)Mae admitted (Tp21-23) that he acted in 2009 contrary to advice he obtained.
68In answering possible mitigating features, he submitted that Mae's plea of guilty was entered "extremely late" (only on 29 June 2012). He also submitted (Tp24, LL34-40):
"Mr Mae's bankruptcy, if this is going to be an important as part of a matter of mitigation, in my respectful submission, is not a matter that would in any way mitigate the seriousness of his conduct simply because his bankruptcy is directly part of his breach of these orders. It has arisen because he has brought these consequences upon himself and the Council was put in the position where it had to pursue those proceedings and have this trustee appointed to recover the not insubstantial costs of the original class 4 proceedings."
69Mr Wright submits that the court should attach little weight to Smith's report as favourable to Mae. Smith records various assertions of innocence, denials of wrong doing, and criticism of Council (Tp25), during his two sessions with Mae, as late as 5 and 19 July 2012.
70However, Mr Killalea relies heavily on the report.
71Once brought before the court last June, Mae "contemplated" his actions very seriously following his sessions with Smith and his taking advice from his solicitor.
72Mr Killalea seized upon Smith's comments about Mae's "delusional belief about his rights in this matter" (Tp30, LL41-42) and his "delusional disorder or something tending towards it" (Tp31, L11).
73In fairness to Mae, I will now quote two passages from Mr Killalea's submissions (Tp31, L40-p32, L5; and Tp33, L50-p34, L10):
"I submit that your Honour can take from that what Mr Smith is effectively saying is that this man suffers from a condition of having delusional beliefs, that that condition is not treatable by counselling, it's not treatable by medication, but what it does react to is the sort of action that this Court is contemplating, and that is what we have seen.
Mr Mae has ultimately not so much come to his senses, but come to an appreciation of mainstream community values on account of his passage from this Court making an order from 2 June 2009, which he did not accord with until he was pressed by legal advice, he was pressed by psychological advice, psychological assessment and he was pressed of course because the consequences of his action came home to him fully in realising that he was, on account of his thought processes - that he now stood - he now stands to be both heavily fined and stands to be imprisoned. And what comes from Mr Terry Smith's report, I submit, is that enough adversity is now threatened upon him that his risk of recidivism is very, very low."
...
"... with respect, on Mr Smith's report, going to gaol is not going to effect anything more than has been effected to date. He's now been made fully aware of the nature of his psychological condition. He's been made fully aware of what is the correct legal position in relation to what he's done. He has come to an awareness on account of both of those matters, the legal advice and the psychological assessment, the process thereof, become aware that what he did was wrong. With respect, he doesn't need in respect of himself anything further to bring him to his senses and to bring him to a commitment, as he's expressed, in terms of his apology for what's happened, his acknowledge of the wrong - he doesn't need anything more to bring about that condition. He's already there."
74He submits that Mae has already suffered the costs of the substantive proceedings, and now of the bankruptcy, and has purged his contempt. As Smith concludes his report (p8): "The established and long term behavioural patterns of Mr Mae are almost invariably prosocial and these are not expected to change".
75Mr Wright responded to those submissions in these terms (Tp39, LL34-42):
"Whilst even with the expression of contrition your Honour might accept that you have before you from Mr Mae, his evidence on oath, an understanding of his wrongdoing. That does not mean that the serious contempt committed to date should not be the subject of severe punishment. It is simply not a proper submission to put with respect in relation to his sentence that the late recognition, acknowledged in any event by a plea of guilty, coupled with some form of insight as to your conduct, means that you should not be punished. It simply means that your Honour might take into account that as one matter in assessing what the appropriate punishment is."
and he further submits (Tp39, L47-p40, L3) that Smith's conclusion:
"...does not coincide with the oral evidence that Mr Mae gave to you this morning, that, as a consequence of this consultation and the advices received, that he does understand the nature of his actions. So it is with respect of little assistance to your Honour to have a person in Mr Smith's position suggesting there is something that tends towards a diagnosis. It really does not have any weight at all in my submission and does not assist your Honour in determining an appropriate penalty."