'If a court lacked 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.' "
20 On an appeal against sentence, the court should not interfere unless it is satisfied that the discretion exercised by the court imposing the sentence miscarried, or was unsound, or unreasonable in its exercise: Kovac v R (1977) 15 ALR 637.
21 None of the cases relied on by the appellant address the particular circumstance of this appeal that the sentence appealed from was the second occasion on which a term of imprisonment had been imposed for conduct in contempt of undertakings given to the court, or of orders of the court. That circumstance is a highly material factor, as instanced by the following cases.
22 In Yager v Musa [1961] 2 QB 214, Devlin LJ, with whom Davies LJ agreed, said at 218-219:
"I see no way of dealing with a man of this sort except in the way in which a criminal court deals with a persistent offender, such as a housebreaker, when, after a preliminary warning or probation, it has to impose a sentence of imprisonment. If immediately after he comes out of prison, the housebreaker, notwithstanding that he said he was going to turn over a new leaf, immediately goes back to housebreaking, a longer sentence of imprisonment has to be imposed, and so on. The court has to balance the need for protecting the public from his molestations or depredations against the principle that, subject to that need, no man's liberty should be taken away unnecessarily. In my judgment, the period of imprisonment that the defendant should now serve should be one - this being his third period - which is substantially longer than the second one, which evidently was not sufficient. If when he is released after that he gives any further evidence of disobedience, the inevitable result will be that he will be brought back before this court again and yet a longer period will be imposed upon him, and, if that is not sufficient, then the court will have to impose a longer period still which may amount to something that will keep him in prison for a very long time indeed."
23 In Vaughan v Vaughan, [1973] 3 All ER 449, a wife was granted a non-molestation injunction pending suit. The husband was committed to prison for breach of that injunction but released a month later. After expressing his regret and undertaking to refrain from further disobedience, he again breached an injunction restraining him from molesting the wife and was sentenced to imprisonment, being released twenty-three days later, after again making an apology and giving an undertaking. On 1 January 1971 he was again committed for contempt, but released on 6 April. As a result of further incidents, he was on 18 May committed for two months for contempt. In respect of yet further conduct, some time later, the husband was committed for contempt for six months. The Court of Appeal amended the detail of the sentence, but Davies LJ said at 454:
"On the merits as to the propriety of the six months period and the question whether molestation has been established, I entirely agree with the conclusion at which the learned judge arrived. I think that in all the circumstances, in view of this man's record of misbehaviour towards his wife, the four committals previously, and the apologies on each occasion followed, immediately in many cases, by a fresh offence, there is nothing out of the way in this order at all."
Stephenson LJ at 454 expressed the view:
"That past conduct makes it impossible to treat this fresh molestation by a suspended committal order or to regard a committal to prison for six months (less one day) as excessive."
Sir Seymour Karminski said at 455:
"So far as the sentence of six months is concerned, having regard to the prolonged history in this case of molestation and the breaking of a large number of promises to behave himself by the husband, it cannot be said that six months is too heavy a sentence."
24 In Burton v Winters [1993] 3 All ER 847, an appeal against a sentence of two years imprisonment was dismissed. Mrs Burton appealed against orders imposing a prison sentence of two years suspended on condition she commit no further breach of an injunction restraining her from trespass, disturbance or wrongful interference with the property of the defendants, Mr and Mrs Winters, and against subsequent orders made activating the prison sentence of two years. Lloyd LJ, with whom Connell J agreed, said at 850:
"The sentence undoubtedly contains a punitive element for the serious and repeated breaches of the injunctions granted on 21 April and 17 July 1992. It also contains a coercive element, (see Lightfoot v Lightfoot [1989] FCR 305). The defendants are entitled to the protection of the law and the court must do its best to provide such protection by coercing the plaintiff in the only way it can. She has been given every chance and afforded every indulgence but all to no avail."
25 In the present case, it was submitted by counsel on behalf of Mr Hudson that an appropriate penalty would have been three months imprisonment and that imprisonment for six months is manifestly excessive.
26 The learned trial judge took into account Mr Hudson's knowledge and understanding of the orders; the wilful manner in which the orders were disobeyed; the time over which the instances of disobedience took place; the volume of breaches of the orders; and the ease with which a person who had desired to obey the orders could have done so compared with the appellant's lack of willingness to do so. In addition, Kiefel J noted:
"The attempt to distance Goldstar, and himself, from demands made [throughout January and early February 1999, while the proceedings were current] is consistent with Mr Hudson's idiosyncratic view of the truth."
27 The contempts were not merely a failure to act, but, as the trial judge found, a failure to take the Court's orders seriously, or a lack of will to comply with the orders, resulting in a failure to take even basic steps to ensure that the court orders were complied with. The appellant, as sole director, was the only one who could prevent Goldstar breaching the Court's orders. The orders breached by Goldstar and Mr Hudson were made on 6 November 1998. On 17 November a sealed copy of the orders was transmitted to an associate of Mr Hudson. The trial judge found that a copy of the orders with attached reasons for them was provided to Mr Hudson. The breaches the subject of this appeal occurred from about 19 November 1998 to about February 1999.
28 These factors, and in particular, the circumstance that Mr Hudson had been sentenced to two months imprisonment for contempt of the court's orders, albeit suspended, immediately prior to the large number of contraventions of which he was found guilty by Kiefel J on 7 May 1999, in our opinion, make it impossible to conclude that the sentence of six months is manifestly excessive.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Burchett and Hely.