11 Mr Nagle's history of proceedings in this Court concerning contempt of this Court reinforces the opinion expressed above that he is a man who thumbs his nose at authority, treats court orders as a challenge, does not learn from his involvement in the various contempt proceedings or, more importantly, from the penalties imposed. It is fairly clear that he did not learn from his experience of serving 60 days' imprisonment.
12 What is the appropriate penalty depends on all the circumstances of a particular case. In my opinion, the principles relating to sentencing of criminals in this State apply in relation to a contempt finding although not all of the provisions of the Sentencing Act apply. See Hugo Rich v Attorney-General for State of Victoria[3]. Sentencing is an exercise of discretion. I refer to what the Court of Appeal said in R v Storey[4]. The Court recognised that different minds will attribute different weight to various circumstances in arriving at the "instinctive synthesis" which takes into account the various purposes of penalty, namely, just punishment, deterrence, rehabilitation, denunciation and protection of the community; and which pays due regard to the principles of totality, parity, parsimony and the like. There is no doubt that some of the relevant matters would not normally apply to punishment for contempt. By way of example, rehabilitation and in most cases protection of the community. Nevertheless the public has an interest in the outcome in most cases because of the importance of the rule of law.
13 The penalty must take into account deterrence, both general and specific. General deterrence, namely, to deter others who may be of like mind to ignore an order of the court, applies, as does specific deterrence involving the particular contemnor. Normally specific deterrence would not apply because the contemnor would learn from his experience and would assure the court that he would not commit a contempt in the future. However, in the present matter I have little confidence that Mr Nagle will not hereafter contravene the undertaking given to O'Bryan J. Specific deterrence applies in the present matter and is a relevant consideration on the question of penalty.
14 As a starting point, the court must consider and take into account what is described as the level of criminality or culpability. In the end result the penalty must fit the particular offence. It must be appropriate and proportionate to the gravity of the offence considered in the light of the objective circumstances.
15 The aggravating features of the contempts committed by Mr Nagle are his deliberate defiance of the undertaking given and his attempts to get around the undertaking by misspelling the word "attorney" in the e-mail address. He has shown over a period of 13 years a defiance to obeying the Court order and undertaking when it must have been apparent that the purpose of the restraining order and the undertaking was to prevent him from providing services to others normally provided by lawyers. Yet he continued to do so. In doing so he breached the undertaking. He has not learnt from his period of imprisonment.
16 I view the breaches of the undertaking in the Leader Newspaper correspondence, the correspondence sent to Mr Grenville, in the RACV matter, and the correspondence in the Rabbit Photo dispute as serious breaches of his obligation to the Court, which represent very serious contempts of this Court.
17 In considering and determining the appropriate penalty the court must not only take into account matters that are relevant to the seriousness of the offence, but also matters which are of a mitigating nature and which are personal to Mr Nagle.
18 Mr Palmer identified a number of mitigating factors. The first matter was that in late 2004 Mr Nagle's solicitors informed the plaintiff's solicitor that Mr Nagle was prepared to plead guilty to 22 of the charges on the basis that the remaining charges and the whole of paragraph 5A be struck out. Not surprisingly, the plaintiff's solicitor, on instructions, refused to accept the offer. His refusal is borne out by the result in this proceeding. Nevertheless, I do take into account that there was a plea of guilty to 22 of the charges and it was made quite clear at the hearing that there was no real contest in respect to 22 of the charges.
19 The second factor is the age of Mr Nagle. He is now aged 56 years, did not enjoy the period of imprisonment in 1996, and he fears going to gaol. Added to this is his state of health. He suffers from Type 2 diabetes and hypertension. He is overweight, has mild hypercholesterolaemia and a history of a serious visual problem. I have no doubt that the serving of any prison term by Mr Nagle would represent an ordeal for him and that any prison sentence for a man of his age, background and state of health would indeed be a difficult time. I take those matters into account.
20 The third matter is the delay. The summons was issued in August 2003. There is no suggestion that any delay in bringing the matter on was due to him. Since he had in the past been punished by imprisonment, the probabilities were indeed high that he would be sentenced to another period of imprisonment and hence the prospect of prison was hanging over his head over the past 18 months. I take that into account.
21 Fourthly, it was put that the offences of which he has been found guilty in this proceeding are not as bad as his past contraventions of the order of McGarvie J. It was emphasised that there was a notable absence of any persons for whom he had acted coming to court to complain. Whilst I note that the charges may be less serious in that there is no conviction that he engaged in legal practice, the gravamen of the charges is his repeated premeditated breaches of the undertaking, occurring over a period of nearly two years, and his deliberate attempts to get around the effect of the undertaking. It is his contemptuous attitude to the law, a court order and undertaking that lies at the heart of these contempt convictions. I am not persuaded by the submission.
22 Three medico-legal reports were placed before the Court; a report from a psychologist, Mr Bob Ives, dated 7 November 1999; another psychologist's report from Mr Bernard Healey dated 11 November 2004; and a report from a general practitioner, Dr Loke, concerning Mr Nagle's physical health. I read all reports. I note that back in 1999 Mr Ives expressed the opinion that Mr Nagle was the type of person who believed in and was totally committed to his view of the world and to that extent would lose contact with reality. He was of the opinion that Mr Nagle suffered from a delusional disorder whereby he genuinely believes that he can help others and be highly regarded by them. As Mr Ives said: