Russell Alan Jarvie is before the Court for sentence for contempt. On 3 March 2017 he pleaded guilty to a single charge laid by the Prothonotary. Garling J made the following declaration accordingly:
"I declare that the defendant, Russell Alan Jarvie, is guilty of contempt of the Supreme Court of New South Wales in that between 27 March 2014 and 28 March 2014 he altered Supreme Court orders signed and sealed by the court on 27 March 2014, and represented the altered orders to be orders of the court."
Contempt is a common law offence. No maximum penalty is fixed by any statute or by rules of court. The Crimes (Sentencing Procedure) Act 1999 (NSW) applies: Principal Registrar of the Supreme Court NSW v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 at [45].
The full range of penalties for which the Crimes (Sentencing Procedure) Act provides is available, according to the court's assessment of the seriousness of the contempt and taking into account the contemnor's subjective circumstances. The range of penalties includes full-time custody and various alternatives thereto.
Objectively, the contempt in this case was a serious interference with the administration of justice. Its particulars are the subject of an agreed statement of facts and an affidavit from the associate to Brereton J.
For approximately 12 years up to about 2010 Mr Jarvie was in a de facto marital relationship with a Ms Vekilis. Following their estrangement proceedings were commenced in 2010 in the Equity Division of the Court by Ms Vekilis against Mr Jarvie, in which orders were sought for adjustment of property rights under the Property (Relationships) Act 1984 (NSW). This claim was solely concerned with real property located at 25 Keppel Road, Ryde.
Hallen J made orders by consent to resolve the dispute on 5 August 2013. During 2013 (I infer, in the latter half of that year) Mr Jarvie caused the subject property to be sold for $810,000. A deposit of $81,000, being 10 per cent, was paid by the purchaser and held by a real estate agent as stakeholder.
On 27 March 2014 the proceedings came before Brereton J. His Honour made orders to give mechanical and practical effect to Hallen J's orders of 5 August 2013, taking into account the fact that the property was now the subject of a contract for sale, of which settlement was imminent.
Brereton J's orders of 27 March 2014 were as follows:
Upon the defendant giving to the court the usual undertaking as to damages and further undertaking that upon completion of the sale of the property situate at and known as 25 Keppell Road, Ryde, NSW being the land comprised in Folio Identifier 22012999:
(a) he will direct payment of the balance proceeds of sale after discharge of mortgage, clearance of any other encumbrances including land tax, conveyancing adjustments, agents commission, and any other proper costs of sale to the solicitor for the plaintiff Robert Tricca and
(b) he will direct the agent holding the deposit in respect of the contract to account for it to the plaintiff.
THE COURT ORDERS THAT
1. The operation of the orders made on 5 August 2013 be stayed until 2 April 2014.
2. The plaintiff by her solicitor attend upon completion at the office of Kemp Strang Solicitors at 12 noon on 1 April 2014 (or at such other time and place as might be notified) and, in return for a cheque pursuant to the direction referred to in undertaking (a) above, hand over a withdrawal of caveat AI410278N insofar as it relates to Folio Identifier 220/12999.
3. The plaintiff have liberty to apply to vary or set aside these orders on such notice as to the Duty Judge in Equity may seem appropriate.
As can be seen from these orders, the adjournment to 2 April 2014 which his Honour directed was in anticipation of settlement of the sale taking place on 1 April 2014.
At some time on or about 27 March 2014 Mr Jarvie obtained from the Registry of the Court a copy of Brereton J's orders bearing the court seal. Either on that day or on 28 March 2014 he altered the sealed copy of the orders. With white-out, he obliterated the words "the solicitor for the plaintiff Robert Tricca" in par (a) of the undertaking and substituted "the defendant." He whited out the final words of par (b), "the plaintiff", and substituted "the defendant."
The effect was to make it appear that his undertaking to the Court, which was integral to the stay and other orders, was that the balance of proceeds of sale, including the balance of the deposit held by the real estate agent after deduction of his commission, would be paid to Mr Jarvie rather than to the plaintiff or for her benefit. The amounts involved were approximately $170,000 of the balance of the sale price to come from the purchaser and the purchaser's incoming mortgagee and approximately $61,000 (being the net amount of the deposit after deduction of commission) to come from the agent, for a total of approximately $231,000.
On about 28 March 2014 the real estate agent requested a copy of the Court's orders to give to the purchaser. Mr Jarvie provided the agent with a copy of the orders as altered by himself. Settlement did not proceed on 1 April 2014. On 2 April 2014 the proceedings came back before Brereton J, as previously directed. The plaintiff's - that is, Ms Vekilis' - solicitor appeared before his Honour and also a solicitor for the purchaser and Mr Jarvie appeared in person. Mr Jarvie asked for an extension of time with respect to the orders Brereton J had made on 27 March 2014, to enable settlement to take place on 8 April and the proceedings to come back before the Court on 10 April. Those variations were granted.
The proceedings did not settle on 8 April. When they were listed again before Brereton J on 10 April there were appearances by a solicitor for the purchaser, an agent of the plaintiff's solicitor and Mr Jarvie in person.
The solicitor for the purchaser informed his Honour that there seemed to be two versions of the orders which his Honour had made on 27 March 2014. He showed one version to the judge, who stated, "Yes, they appear correct." He then showed another copy, which was the one Mr Jarvie had altered. The solicitor for the purchaser said he had received it from the purchaser's previous solicitor who had, in turn, obtained it from the real estate agent. As is now known, the real estate agent had obtained it from Mr Jarvie.
As a result of comparing the two documents his Honour stated, "The order of the court has been altered without authority and made false." His Honour asked Mr Jarvie whether he had made a change to the orders before sending the copy on to the agent. Mr Jarvie answered, "No, your Honour," which was untrue. His Honour made an order for production of the real estate agent's documents with a view to ascertaining the provenance of the falsified copy of the Court's order of 27 March 2014.
This falsification having been detected and the correct version of the orders having been identified, settlement of the sale proceeded on 15 April 2014. Ms Vekilis had registered a caveat over the title to the property to protect her claim to an interest in it, which was the subject of the substantive proceedings in the Equity Division. This meant that either Ms Vekilis or her solicitor would have had to attend the settlement of the land transaction in any event. His Honour's order 2 of 27 March 2014 provided for this. Mr Jarvie, who was selling the property, would not have been able to make a complete title to the purchaser without providing a withdrawal of that caveat.
The withdrawal of caveat would not have been given by Ms Vekilis without payment being made from the purchaser and the purchaser's incoming mortgagee to Ms Vekilis' solicitor, as required by the undertaking Mr Jarvie had given to Brereton J on 27 March 2014. The withdrawal of caveat would not have been handed over without Ms Vekilis or her solicitor seeing that the authority to the real estate agent for disbursement of the deposit was in terms which directed the balance to be accounted for to Ms Vekilis. In short, Mr Jarvie's attempts to divert the net proceeds of the sale to himself, in contravention of his undertaking to the Court, could never have succeeded and in the event did not succeed.
On 28 April 2014 the proceedings were back before Brereton J. His Honour was then informed that the sale of the property had settled on 15 April. The real estate agent appeared before the court and produced his documents, as had been ordered on 10 April 2014. Brereton J examined them. His Honour was informed by the agent that the falsified Court order had been faxed through to him by Mr Jarvie. Mr Jarvie himself was not before the Court on 28 April 2014.
In these circumstances, Brereton J directed, pursuant to Pt 55 r 11 of the Supreme Court Rules 1970 (NSW), that the Registrar should apply by motion for punishment of Mr Jarvie for contempt in that, in his Honour's words, "he fraudulently altered a sealed copy of an order of the court."
There was a delay of over a year between Brereton J directing that a contempt charge be laid and the commencement of proceedings by the filing of a summons. The Registry gave instructions to the Crown Solicitors Office to commence proceedings at some time in December 2014. The summons was filed on 19 May 2015.
Without ascribing blame in the absence of full information I record that that delay was inordinate and unacceptable. The case against Mr Jarvie was made as soon as the real estate agent spoke in Brereton J's court on 28 April 2014. Swift prosecution of the charge of contempt was possible and was required. The purpose of charging contempt in such a case is to uphold the authority of the Court and the integrity of its processes, in the interests of effective administration of justice for the benefit of the whole community. The public importance of this calls for expedition.
The summons was served on 31 July 2015. Delays since that date in bringing the contempt charge to a conclusion have been entirely the fault of Mr Jarvie. After service of the initiating process he did not attend interlocutory hearings. He did not comply with orders that he appear before the Court. He avoided service of further process and generally frustrated the progress of the contempt charge against himself.
Eventually, with a full history of Mr Jarvie's non-attendance and general lack of co-operation before me, on 22 September 2016, I issued a bench warrant. On that warrant he was arrested on 28 February 2017.
Even then, when the warrant was executed on a semi-rural property on the outskirts of Sydney, Mr Jarvie attempted to evade by running from the sheriff's officers and three accompanying police officers, into the bush. He was nevertheless apprehended. He was brought before Garling J on 3 March 2017, and his plea as previously referred to was entered that day.
Those are the objective circumstances of the contempt and of the course by which the charge in respect of it has come before the Court.
The contemnor's subjective circumstances are as follows. Mr Jarvie was 56 years old at the date of the events constituting the contempt, and he is 59 years old at the date on which he stands for sentence. According to representations he has made to a Community Corrections officer for the purpose of a pre-sentence report, he was brought up in a stable family environment and enjoyed good relationships with both of his parents. His father died in 2002. His mother is now 80 years old, and Mr Jarvie cares for her. They are close.
Mr Jarvie has been in a stable relationship with a female partner for the past five and a half years. His mother and partner attended court for the sentence hearing, in support of him. Mr Jarvie has a brother and sister but apparently does not have close relationships with them. There was little information about them available to Community Corrections for the purpose of preparing their report.
Mr Jarvie was educated to year ten level and left school to commence an apprenticeship in panel beating. He obtained trade qualifications in vehicle body repair and later as a mechanic and motor trimmer. He purchased his own business fairly early in his working life. Namely, a business of motor vehicle repair. He was self-employed in that business until 2015.
Information before the Court from the Australian Financial Security Authority shows that he was made bankrupt by a sequestration order issued on 9 May 2014. That is, within about a month of the completion of the sale of the property at Keppel Street, Ryde.
The circumstances of this bankruptcy have not been explained to the Court. Mr Jarvie did not give evidence on sentence. I cannot infer anything with respect to his financial circumstances leading to that bankruptcy. In particular, I cannot determine whether financial pressures had anything to do with the action which he took in contempt of Court.
I am not able to assess his present financial circumstances as they might bear on his future prospects. The absence of Mr Jarvie from the witness box on the sentence proceedings leaves me with sparse information upon which to assess his present subjective status.
Mr Jarvie's criminal record shows that he had committed no significant offence until October 1992, at the age of 32 years old, when he was charged with a series of quite serious matters, including converting a firearm into a pistol and possessing a shortened firearm, stealing and conspiring to steal. There were a number of other offences of the same date which were dealt with on a schedule when the offences to which I have just made a reference were committed to the District Court for sentence.
He was sentenced to periodic detention for three years commencing 19 November 1993. According to the usual practice of the Department of Corrective Services, and as confirmed by brief references in the pre-sentence report, a large part of that duration of periodic detention was commuted to community service. Mr Jarvie has not come to the attention of authorities again since 1992.
In determining the appropriate penalty, I consider that I am bound by the constraint under s 5 of the Crimes (Sentencing Procedure) Act that full time custody should not be imposed unless the Court is satisfied that no lesser form of penalty would meet the requirements of the case. I consider that this case does meet that requirement. Nothing short of full time custody would fulfil the demand for general deterrence in order to maintain the authority of the Court, in a case such as this.
Of the sentencing objectives prescribed in s 3A of the Crimes (Sentencing Procedure) Act, item (a) (that the offender be adequately punished for the offence), part of item (b) (that there should be deterrence of other persons from committing similar offences) and item (f) (denunciation of the conduct of the offender) are the most important.
I do not consider that specific deterrence for Mr Jarvie plays a significant part in fixing sentence, for a number of reasons. First, although his record includes serious offences and is not such as to entitle him to lenience, it is not a record which includes significant fraud offences or any evidence of persistent criminal offending in matters of dishonesty. Nor does his record evince repetitive offending in any category. It shows that he has not come to the attention of police for over twenty years up to the commission of this contempt.
His antecedents do not call for a substantial component of sentence to deter him personally from re-offending further. His contempt was committed in circumstances of his involvement in court proceedings which placed him in a position to act fraudulently towards the Court and towards Ms Vekilis. He is unlikely to be placed in such a position of opportunity again. His record does not disclose any tendency to seek out or to create opportunities for dishonest conduct.
In the assessment of the Community Corrections officer who prepared the pre-sentence report he is at a low to medium risk of re-offending. I have no hesitation in accepting that assessment. The unlikelihood of his re-offending is in my view supported by his expressions of remorse. These have been conveyed to the officer who prepared the pre-sentence report and also in a letter of apology written by Mr Jarvie and addressed to Brereton J. I am satisfied on the balance of probabilities that his expressions of remorse are genuine.
I take into account that Mr Jarvie's sentence for this contempt is his first experience of full time custody. It commenced on 28 February 2017 when he was arrested. He has not been granted bail in the meantime.
There is evidence that he suffers very severe low back pain and leg pain which may be attributable to a transient infection of his lumbar disks, but which treating specialists have been able to diagnose with confidence or to treat with complete success. The combination of his age, background, and disabling back condition are factors which make confinement in custody a greater hardship for him than for many other inmates in the prison population.
With a view to achieving consistency in the measure of punishment for contempts, I have had regard to two instances of the fixing of penalty where court orders with respect to real property have been disobeyed. These are, of course, not precisely comparable because there is an element of contempt and criminality involved in the present case of fraudulent alteration of a court document and attempted circumvention of the court's decision. This constitutes an interference in the administration of justice of a kind somewhat different from cases of simply disobeying orders.
In Ronowska v Kus (No 2) [2012] NSWSC 817, a term of 18 months imprisonment was imposed for an objectively much more serious contempt than the present. It involved a similar sum of money, $250,000, which was part of the proceeds of sale of a property. The contemnor was required by order of the Court to deposit this sum into a controlled moneys account. Instead of doing so he dissipated the money and the party who should have had the benefit of it was denied that benefit. The court's attempt to do justice between the parties before it was thereby frustrated.
The conduct of the contemnor was sustained over a period of time. It involved a number of transactions by which the funds were dissipated and it involved occasions of misrepresentation to the court about his conduct, thereby concealing his wrongdoing. The degree of sustained disobedience to or defiance of a court order is a significant aspect of the criminality in this field. Mr Jarvie's unsuccessful attempt to misrepresent the Court's orders was a single event, it was inherently ineffectual, it was not compounded by any calculated or persistent attempt to see it to fruition and it did not in fact lead to permanent or irremediable loss to another party whose rights the Court sought to vindicate.
In LGM v CAM (Contempt) [2008] FamCAFC 1, the Full Court of the Family Court dealt with a contempt committed by a party to property distribution proceedings under the Family Law Act 1975 (Cth). The party in contempt was the former wife in the marriage. She had obtained interlocutory orders to restrain disposition of matrimonial property pending resolution of her dispute with the husband.
In breach of those orders, she mortgaged one property for about $145,000 and sold an interest in another property, to a similar value. The result was a dissipation of joint marital assets which placed them beyond the capacity of the Court to distribute in accordance with the Family Law Act. There was an offer by the wife to purge her contempt by recovering the property and discharging a mortgage but that was not in fact effected. The punishment imposed was, for each property transaction, imprisonment for four months, both terms to be served concurrently.
Again, objectively, the contempt in that case was more sustained than in the present case and it caused loss of assets and actual frustration of the court's exercise of jurisdiction. Because there were two transactions, each of them was to be dealt with upon the usual principle of sentencing that repetitive conduct assumes a more serious and highly criminal aspect than an individual and isolated incident. The effect of the wife's conduct in that case was irremediably to deprive the court of jurisdiction over property and to deprive the opposing party in the litigation of the opportunity to have the court adjust rights with respect to it.
These comparisons require caution because of the differences in particulars of the contempts and because subjective circumstances of the respective contemnors are not fully elaborated in the reports and I have not attempted to consider them. Precise comparability is not attainable. The purpose of taking into account these other sentencing decisions is to have regard to examples of the courts' response to other contempts which have some similarity to the present instance. I have not been able to find a case of punishment for contempt where a court record has been altered in an unsuccessful and ill-conceived attempt to divert a payment.
I have had regard to the list of aggravating factors set out in subs (2) of s 21A of the Crimes (Sentencing Procedure) Act. I do not consider that any of them have a direct bearing upon this case, except insofar as the matters I have already referred to may fit these sentencing criteria. I have considered the statutory mitigating factors in subs (3) of s 21A, as far as applicable.
It has been urged upon me that the contemnor in this case pleaded guilty to the charge at the earliest opportunity, namely when he was brought before the Court having been arrested on the bench warrant. In the setting of a contempt proceeding being conducted in this Court, I do not consider that to be the earliest opportunity. The summons was served, as I have mentioned, on 31 July 2015, and the earliest opportunity for Mr Jarvie to indicate his admission of guilt to the charge would have been very shortly after that. Instead, he sought to evade the proceedings for a considerable period of time.
Nevertheless, having at last been brought before the Court and required to respond to the charge, it is correct that he has not put the Prothonotary to proof, but has admitted his guilt, and he is entitled to consideration for that. I conclude that a reduction of 15% in the sentence which I would otherwise have imposed is a fair treatment for this consideration.
I propose to order that the sentence which he is to serve will date from the date of his arrest. All of his remand will count as time served.
[2]
Sentence
For the contempt of court charged as set out at [2] of these remarks, Russell Alan Jarvie is sentenced to a fixed term of imprisonment of three months commencing 28 February 2017 and expiring on 27 May 2017. The term having expired, and there being no other warrant for him to remain in custody, Mr Jarvie is entitled to be released forthwith.
[3]
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Decision last updated: 19 June 2017
Parties
Applicant/Plaintiff:
Prothonotary of the Supreme Court of New South Wales