Environment Protection Authority v Pannowitz

Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Australian Consolidated Press Limited v Morgan (1964) 112 CLR 483; Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469; Environment Protection Authority v Pannowitz [2006] NSWLEC 219; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175; Environment Protection Authority v Thaler [2005] NSWLEC 109 ; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR; CASES CITED: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118; Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435; Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 ; Smith v The Queen (1991) 25 NSWLR 1; United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323; Witham v Holloway (1995) 183 CLR 525; Wood v Staunton (No. 5) (1996) 86 ACrimR 138

PROSECUTOR: D A Buchanan SC SOLICITOR: Stephen Garrett Environment Protection Authority LEGAL REPRESENTATIVES:

DEFENDANT: D P M O'Dowd (barrister) SOLICITORS: Thompson Norrie

JUDGMENT:

• 13 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY v PANNOWITZ (No. 2) [2006] NSWLEC 797

1 HIS HONOUR: The defendant, Kenneth Warren Pannowitz, is charged with contempt of court. Mr Pannowitz pleaded not guilty to the charge and, after a hearing over three days in March 2006, I delivered a reserved judgment on 9 May 2006 in which I found the charge proved beyond a reasonable doubt: see Environment Protection Authority v Pannowitz [2006] NSWLEC 219. That matter is now before me for submissions on sentence and the determination of the appropriate sentence. 2 The detailed facts giving rise to the charge of contempt are set out in my previous judgment and need not be repeated. It is sufficient to note that the charge arose out of an order made by this Court in proceedings entitled Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175. That was a prosecution for an offence of unlawful transport of waste to a place that could not lawfully be used as a waste facility contrary to the provisions of the Protection of the Environment Operations Act 1997, s 143(1). Mr Pannowitz was the sole director of Steepleton Pty Limited ("Steepleton"). The defendant corporation was convicted of the offences charged, fined $40,000 and ordered to pay the prosecutor's costs. In addition, the Court made a publication order under s 250(1)(a) of the Act. In separate proceedings against Mr Pannowitz personally for the same offence, the Court convicted him of the offence as charged and ordered him to pay a fine of $20,000 and pay the prosecutor's costs. 3 The charge of contempt arises as a result of the publication order against Steepleton and the publication consequent upon the order that Mr Pannowitz caused to be made. I found proved beyond reasonable doubt that Mr Pannowitz committed contempt of court in the following respects: (a) He interfered with the course of justice in the proceedings entitled Environment Protection Authority v Steepleton Pty Limited (2005) NSWLEC 175 by doing the following acts which undermined, frustrated or interfered with or which had the effect of undermining, frustrating or interfering with the publication order made by the Court in that case: (i) causing the notice to appear on page 4 of the Newcastle Herald rather than on page 3 as required by the order; (ii) causing the notice to be one-sixteenth of a page in size instead of at least a quarter page in size as required by the order; and (ii) causing the following additional words to be included in the notice, " This matter has been referred by Steepleton to ICAC for further investigation ." (b) He aided and abetted a contempt of court committed by Steepleton in that he procured a breach by Steepleton of the publication order by the same acts. (c) He scandalised the Court by causing the notice to be published in the Newcastle Herald with the additional words: " This matter has been referred by Steepleton to ICAC for further investigation ". (d) He aided and abetted Steepleton in scandalising the Court by causing the notice to be published in the Newcastle Herald with the additional words. 4 In so finding I was satisfied beyond a reasonable doubt that Mr Pannowitz had previously expressed the clear intention to deliberately undermine, frustrate or interfere with the administration of justice: see par [44] of my previous judgment. 5 I also found that the acts which constituted the contempt in this case amounted to an interference with the course of justice as they undermined, frustrated and interfered with the Court's publication order: see par [77] of my previous judgment. 6 I found that, although Steepleton committed the principle offence, Mr Pannowitz as director of Steepleton caused the publication of the advertisement and in so doing he aided, abetted, counselled and procured Steepleton to disobey the order of the Court: see par [81] of my previous judgment. 7 Moreover, I found that in three respects the departures from the form of the notice ordered by the Court were deliberate, particularly the inclusion of the additional words "This matter has been referred by Steepleton to ICAC for further investigation": see par [83] of my previous judgment. 8 I found that those additional words amounted to an allegation of corrupt conduct by the Court in arriving at its judgment, that viewed objectively the words had an inherent tendency to scandalise the Court and I was satisfied beyond reasonable doubt that by causing the additional words to be published, Mr Pannowitz committed contempt by scandalising the Court. 9 I now refer to events which have occurred since my finding on 9 May 2006 that the charge of contempt was proved. On 9 May, that is the same day as the judgment, the prosecutor's solicitor Mr Damon Anderson wrote to Thompson Norrie, the defendant's solicitors, suggesting the form and content of an advertisement to be re-published. There were a number of follow-up letters to Thompson Norrie, but according to Mr G W Williams, of the defendant's solicitors, it was not until 9 October 2006 that he received instructions from the defendant to effect publication of an apology and statement of conviction in the Newcastle Herald in accordance with the suggested requirements of the prosecutor. 10 Ultimately on 11 November 2006 an advertisement appeared on page 28 of the H1 section of the Newcastle Herald published on Saturday, 11 November 2006. That advertisement comprised more than one-quarter of the size of a page and it generally satisfied the suggestions of the prosecutor's solicitor. 11 A question arises as to whether this advertisement amounts to a purging of the contempt. There is no doubt that the Court will not hear a defendant who has been held to be in contempt unless that person has cleared or purged his or her contempt. That much appears in United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 at 340, in which the following statements in the Encyclopaedia of the Laws of England, 2nd ed (1907) vol III at 504-505 were approved: "Where contempt has arisen from doing an act contrary to an injunction not to do it, the contempt is cleared by an apology to the Court and making reparation for the act improperly done and payment of costs". 12 The question which arises is whether the material amounting to the re-published publication order as appeared in the Newcastle Herald of 11 November 2006 is a purging of the contempt. It is submitted on behalf of the prosecutor that this material is, in effect, buried in the paper rather than on page 3 as the original order required. Moreover, the prosecutor points to a number of letters in evidence from the solicitor for the prosecutor to the solicitors for the defendant warning the defendant that to avoid either a charge of contempt or a conclusion that he has not purged his contempt he should publish an apology and re-publish the publication order properly. 13 There is evidence from Mr Williams, of the defendant's solicitors, that he attempted to have the republication of the publication order and the apology published on page 3 of the Newcastle Herald. His attempts to do so were unsuccessful. He spoke to Mr Kieran O'Toole of the Newcastle Herald on 25 October in relation to publication of at least a quarter page advertisement on page 3 of a Saturday edition of that newspaper, and Mr O'Toole said to him, "It was never going to happen". It was never going to happen because it appears that page 3 is permanently booked by advertisers on contract with the Newcastle Herald. The best that could be done was what was done, namely to have it printed elsewhere in the general news section of the paper. 14 I observe that the advertisement on page 28, as published, is large. It is larger than that which was required by the Court's order. In my opinion sufficient attempts have been made by the defendant to purge his contempt and I regard what has been published as a purging of the contempt. 15 Evidence has been given before me by the defendant on oath today in which he has said that he is sorry for what he has done. He acknowledges that it was wrong and he realises this now. He says he was angry at the time and would take it back if he could. He has suffered as a result of these proceedings. 16 I shall refer briefly to what is said by his medical advisers. Mr Pannowitz is at present undergoing counselling. He wants to get back to work again. He wants to earn money to pay his bills and pay his fines. I note however that the original fine imposed upon him in his personal capacity of $20,000 has not yet been paid. 17 The evidence shows that Mrs Pannowitz owns a property which is unencumbered and she is prepared to mortgage it for the purpose of enabling any fine to be paid. There is evidence from Mr Pannowitz's general practitioner, Dr Anthony Wall, who says that Mr Pannowitz is suffering from major depressive disorder with suicidal ideation. And in particular there is a report from a consultant psychiatrist, Dr Ivan Safranko, dated 20 November 2006 who says that he has seen Mr Pannowitz on three occasions namely 28 October 2006, 11 November 2006 and 18 November 2006. Dr Safranko says that Mr Pannowitz is suffering from major depression, he is suffering from suicidal ideation and a sense of hopelessness. He says that with current treatment, antidepressant medication, support psychotherapy and the removal of the major stressor - that is the threat of a gaol sentence - the prognosis for recovery is excellent. He concludes his report as follows: I believe that a custodial sentence would have a major negative impact on Mr Pannowitz's mental state. A custodial sentence will remove Mr Pannowitz from his social supports, his wife and family, which currently are the major protective factors in the prevention of suicide. A custodial sentence will remove Mr Pannowitz from his treating doctors and will remove the current therapeutic relationship that is the focal point of recovery. A custodial sentence will reinforce Mr Pannowitz's greatest fear (that of going to gaol) and it will remove the last vestige of hope that Mr Pannowitz has. This will most likely exacerbate his depressive symptoms, in particular hopelessness and suicidality, placing him at a higher risk of suicide. 18 There is also tendered a number of references, all recent and all attesting to Mr Pannowitz's otherwise good character and reputation. 19 This Court clearly has the power to punish persons guilty of contempt or disobedience to any order made by the Court and that power is the same as that which is vested in the Supreme Court: see s 67 of the Land and Environment Court Act 1979. 20 The underlying purpose of the exercise of the power of the court to punish for contempt is to protect the effective administration of justice by demonstrating that the court's order will be enforced: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 106-107. In Mudginberri the High Court referred (at 107) to Borrie and Lowe's Law of Contempt, 2nd ed (1983) at 3: If a court lacks the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. 21 The function of punishment for contempt serves two purposes: the enforcement of the process and order of the court and punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose punishment also serves the purpose of deterring both the contemnor and others who might be so minded from flouting the authority of the court. 22 Non-compliance with an order or a judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must therefore show that obedience to a court's order is important and should reflect its gravity. 23 Finally on the question of the nature and purpose of a penalty for contempt it is worth noting the judgment of Kirby J in Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435 at 485[149]: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result". [ Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115]. Obviously, the culpability of the contemnor is relevant to the order which must be made [ Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741] The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner. 24 In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, Kirby P, Hope A-JA concurring, in an important passage 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. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or "excessive fines": see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695.

25 The capacity of Mr Pannowitz to pay any monetary penalty is limited. He is at present earning money from a battery and oil business conducted under the name of Husky Holdings Australia Pty Limited. That company is, it is fair to say, struggling to make money. According to the profit and loss statement tendered from July 2005 to June 2006 the company operated at a loss of some $103,877.00. Mr Pannowitz's income has involved making drawings from that company. In that same period he made drawings amounting to $67,259.70. 26 Section 6 of the Fines Act 1996 requires the Court to consider the means of the accused when fixing the amount of any fine. In Environment Protection Authority v Thaler [2005] NSWLEC 109, Talbot J held that the Fines Act does not apply to a monetary penalty imposed by the Court for contempt. A fine is defined, however, in s 4 of the Fines Act as "any monetary penalty imposed by a court for an offence". 27 I have noted that the Court of Appeal has held that a conviction of contempt of court is a conviction for a common law offence, criminal in nature: Maniam [No. 2] at 314. Judicial comity would normally require that I should accept the decision of Talbot J in Thaler as correct unless convinced that it was wrong: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820. Talbot J gave no reasons however for his view that the Fines Act does not apply. Since a conviction for contempt is a conviction for a common law offence, it seems clear that a monetary penalty imposed by the Court for such an offence is also a fine within the meaning of the Fines Act; and since Talbot J gave no reasons for the contrary conclusion, I hold that that the Fines Act does apply (as I previously held in Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469).

28 The Crimes (Sentencing Procedure) Act 1999 (which I will call the Sentencing Procedure Act) applies to the sentencing of contemnors: see Attorney General NSW v Whiley (1993) 31 NSWLR 314; Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527. Section 3A of that Act sets out the purposes for which a court may impose a sentence on an offender: (a) to ensure that the offender is adequately punished for the offence; (b) to prevent crime by deterring the offender and other persons from committing similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. 29 Only one of the aggravating factors set out in s 21A(2) of the Sentencing Procedure Act is relevant in this case. That is the fact that Mr Pannowitz does have a record of previous convictions. In 1974 he was convicted in the District Court of six offences. Firstly, larceny of a trailer, for which he was sentenced for four years imprisonment to be served concurrently with the other offences which follow. Secondly, receiving, for which he received a penalty of three years imprisonment to be served concurrently. Thirdly, accessory after the fact, the penalty being three years imprisonment to be served concurrently. Fourthly, accessory after the fact, again a penalty of three years imprisonment to be served concurrently. Fifthly, receiving, the penalty being four years imprisonment to be served concurrently. And finally, another charge of receiving, for which the penalty was four years imprisonment to be served concurrently. 30 There were appeals on these sentences to the Court of Criminal Appeal. The appeals were allowed in part but the sentences were confirmed and the non-parole period varied. 31 In 1984 Mr Pannowitz was convicted of two offences in the District Court at Newcastle, firstly, "obtaining credit whilst an undischarged bankrupt" and secondly, "carrying on business whilst undischarged bankrupt". In respect of each offence he was sentenced to twelve months imprisonment to be served concurrently. 32 Finally, he has a previous conviction in this Court, namely the conviction in the principle proceedings for which he was fined $20,000, noted in par [2] above. 33 A number of mitigating factors set out in s 21A(3) of the Sentencing Procedure Act are relevant and are taken into account. He is a person of otherwise good character. I accept that he is a person who is unlikely to re-offend. I accept his evidence that he is sorry for what he has done and that he has shown remorse and he has done so by purging his contempt. I take those factors into account. 34 In Wood v Staunton (No. 5) (1996) 86 ACrimR 138 at 185, Dunford J identified some relevant factors of general application to sentencing of persons for contempt. These factors were applied by Studdert J in Jando at 533 and the following pages. The relevant factors are: (a) the seriousness of the contempt proved; (b) whether the contemnor was aware of the consequences to himself of what he did; (c) the reason for the contempt; (d) whether there has been any apology or public expression of contrition; (e) general and personal deterrence; (f) denunciation of the contempt; and (g) the character and antecedents of the contemnor. 35 I accept that some of these considerations are inappropriate in the case of contempt involving breach of an order to publish a public notice or of aiding or abetting such a breach. The main considerations are obvious: the seriousness of the offence and the effect of the contempt upon public confidence in the judicial system. 36 By far the most important factor in all sentencing is the objective gravity or seriousness of the offence: Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81 and Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 37 As I have noted above, the punishment for contempt must serve as vindication of the authority of the Court, and any punishment must show that obedience to a court's order is important and should reflect its gravity. The contempt in this case is all the more serious because of the element of scandalising the Court. 38 As I have noted already, I accept the submission on behalf of Mr Pannowitz that he is unlikely to re-offend and hence there is little need for an element of specific deterrence. Nevertheless, general deterrence and denunciation of the conduct concerned are major considerations in the imposition of penalties for contempt: see Maniam [No 2] at 314, Pelechowski at 435, Smith v The Queen (1991) 25 NSWLR 1 at 23 and 24, Wood v Staunton at 138. If the contempt is contumacious in character there should not only be compliance with the relevant order but the Court may also consider imprisonment as an appropriate punishment: see Australian Consolidated Press Limited v Morgan (1964) 112 CLR 483. 39 The range of penalties that can be imposed was helpfully itemised by Campbell J in NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [25]:

In principle, a contempt of court could be punished by anything within the range of penalties that can be imposed for a crime, pursuant to the Crimes (Sentencing Procedure) Act 1999 . That range consists of imprisonment (section 5) periodic detention (section 6), home detention, (section 7) community service orders (section 8) good behaviour bonds (section 9), dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention programme (section 10), deferral of sentence (section 11), suspended sentence (section 12), fine (section 14), or the making of a non association or a place restriction order (section 17A). 40 A serious offence such as the present would normally call for the imposition of a substantial fine at the very least. I have already noted that Mr Pannowitz has a limited capacity to pay any fine. He has not, as I have noted, paid the personal fine of $20,000 imposed upon him in the proceedings against him personally. Nevertheless he interfered with the course of justice in scandalising the court and that must be regarded as a serious offence calling for an appropriately serious penalty. 41 The Probation and Parole Services has provided a report on Mr Pannowitz which looks at alternative sentencing options. The report states that Mr Pannowitz is ineligible for a periodic detention order as per the requirements of s 65A of the Sentencing Procedure Act. He has been assessed as suitable for a community service order as per the requirements of s 86(1) of the Sentencing Procedure Act and has signed an undertaking as required by s 86(1)(e) of that Act. 42 Having regard to Mr Pannowitz's inability to pay any fine, to the report of his psychiatrist to which I have referred and to his wish to earn money to pay his bills and his fines, I am of the opinion that a community service order is appropriate. 43 Mr Pannowitz please stand. You are convicted of the offence of contempt of court. I am satisfied of the matters referred to in s 86 of the Crimes (Sentencing Procedure) Act 1999 and have regard to the contents of the assessment report which states that you are suitable for community work. I sentence you to 300 hours of community service. You are to report to the New South Wales Probation and Parole Service, Maitland District Office within seven days to enable administration to be commenced. You are also ordered to pay the costs of both the contempt proceedings and this hearing on penalty. 44 The exhibits may be returned. The defendant is ordered to pay the prosecutor's costs in accordance with s 253 of the Criminal Procedure Act 1986 as it stood immediately prior to its repeal.

I hereby certify that the preceding 44 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.