Prothonotary of the Supreme Court of NSW v Louise Lyel

Supreme Court of NSW|2020-11-30|Before: Schmidt AJ, Adams J, Davies J

Judgment

Ms Lyel is to be sentenced for her admitted criminal contempt of this Court, committed during proceedings which she commenced in April 2016 seeking the stay of her eviction from a property which she had been renting since March 2015 at Paddington, which had been ordered by the NSW Civil and Administrative Tribunal. The owners had earlier served a notice requiring her to vacate the property by 27 January 2016 for non-payment of rent. When she did not vacate they obtained orders in February from NCAT for the termination of the tenancy and her eviction. The eviction order was stayed on her application on 17 February and later vacated, with the eviction rescheduled for 20 April.
In this Court Ms Lyel initially obtained a 48 hour stay before N Adams J when she appeared ex parte on an incomplete; partially hand drawn summons advancing a case that she had missed the NCAT hearing while she was in hospital. On 27 April 2016, having created a Gmail account in a false name, she sent Davies J's associate a false email chain between herself and one of the named defendants, purporting to consent to a continuation of the stay. Ms Lyel then relied on these communications when she appeared before his Honour the following day and obtained a continuation of the stay.

Issues

Given Ms Lyel's admission of her contempt, the Prothonotary did not press an order for costs.
There was no issue between the parties about the nature or seriousness of Ms Lyel's contempt, the principles which have to be applied in arriving at her sentence, or the relevance to the sentencing exercise of her acceptance, when confronted with the Hospital records, that she had given false evidence in her August affidavit.
What was in issue was the impact of Ms Lyel's mental health on her sentence, including upon considerations which must be taken into account, such as denunciation, general and specific deterrence and whether her expression of remorse could be accepted as genuine, relevant as that also was to her sentence.

Conclusion

Ms Lyel may be punished for her contempt by committal to a correctional facility, a fine or both and such an order may be made on terms: Pt 55 r.13 of the Supreme Court Rules 1970 (NSW). There was no issue between the parties, however, that Ms Lyel has no capacity to meet any fine which could be imposed upon her.
For reasons which follow, I am in any event satisfied that given the nature and seriousness of her contempt, considered together with the other relevant matters raised by the evidence, which have to be taken into account in arriving at her sentence, a custodial sentence of 4 months' imprisonment must be imposed upon Ms Lyel.

The Prothonotary's case

The parties advanced extensive written and oral submissions.
The Prothonotary's case in written submissions was that Ms Lyel's contempt was serious, given the significant deception by which she deliberately misled the Court and impaired its capacity to do justice in the proceedings she commenced, by denying it knowledge of the true circumstances of the case and impeding the free exercise of its jurisdiction and powers. Those circumstances required a strong deterrent sentence to be imposed upon her, because such contempt "strikes at the very heart of the justice system and...must be severely punished whenever...detected": R v Pangallo (1991) 56 A Crim R 441 at 443.
That conclusion was supported by the marked degree of planning involved in Ms Lyel's creation of the false email address which she used, on her evidence before she approached Davies J, as well as the series of emails which she had created, all designed to deceive his Honour into thinking that she was in genuine communication with the owners of the property.
It was also relevant that Ms Lyel had also pursued her deception at her later appearance in a direct and face-to-face interaction with Davies J, during which she did nothing to put a stop to her deceit. Instead she deliberately refrained from disabusing his Honour of her deception. The result was that his Honour made orders on the basis of her false emails in her presence, communications over which she had complete control, her conduct not being the result of anyone else's assistance or encouragement.
Ms Lyel's ex parte application misled Davies J into believing that the owners were aware of the application and did not oppose the order she sought, with the result that his Honour stayed her imminent eviction. In the circumstances justice required that they be given an opportunity to be heard on her application, given their protracted, successful pursuit of the unpaid rent and vacation of their property.
By fraudulently posing as one owner in her false communications, Ms Lyel had also violated the owners' rights, by her deliberate, calculated conduct, undertaken in full awareness of the deception involved and the prejudice which they would be caused.
In oral submissions it was urged that the sentence imposed on Ms Lyel needed to give proper recognition to deterrence and denunciation, even though it was accepted that account had to be taken of her mental health problems. It was important to the rule of law that Courts are able to administer justice fairly and that they are not deliberately misled, including during applications to a duty judge in the Common Law Division, which of necessity are sometimes dealt with ex parte.
Further, that it was imperative that by the sentence imposed, others were left in no doubt that it is unacceptable for a person to deliberately mislead the Court, including by proffering falsified documents to secure an advantage in litigation, while at the same time denying access to the Courts to another party who should properly be there.
Ms Lyel's continued falsehood in these proceedings meant that her evidence had to be approached with caution, as did histories she had given others. The apology that she had expressed could, as a result, be considered to have merely reflected that she was very sorry about her current predicament, consistent with her having offered no apology to the Court before she swore her August 2020 affidavit and never having offered any apology to the owners of the property.
This conduct and her antecedents also established that Ms Lyel was not entitled to any lenience on sentence, because her contempt did not involve conduct that was aberrant, one off, or out of character.

Ms Lyel's case

In written submissions Ms Lyel accepted that her contempt fell within the most objectively serious class of contempt, being contumacious of the authority of the Court, that being the essence of such contempt: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500.
It was also accepted to be relevant that the purposes of punishing a contemnor had to be borne in mind in arriving at her sentence, including deterring her and others in the future from committing like contempt and denouncing her contempt in an appropriately emphatic way: Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. That arising "where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order": Registrar, Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 per Kirby P at [315].
It was submitted that not every case of a wilful and deliberate interference in the administration of justice by the courts attracts a custodial sentence. In some cases it is sufficient to impose a substantial fine, "at least where there are circumstances which explain the behaviour or tend to mitigate its seriousness". But it was finally not submitted that this was such a case and in oral submissions accepted that in any event, Ms Lyel had no capacity to pay any fine imposed upon her.
But it was argued that consideration of the evidence about Ms Lyel's considerable mental health problems would result in it being accepted that general and specific deterrence had less role to play in her sentence than they otherwise would.
In oral submissions it was also accepted that Ms Lyel's false affidavit evidence had affected her credibility, but argued that given that the balance of her evidence, including as to the unchallenged histories which she had given Dr Allnutt, the totality of her credibility had not been affected. But that Ms Lyel had not corrected her false statement did leave it open to the Court to have some concerns about the veracity and accuracy of her evidence, given that the first opportunity she took to correct "the state of play" was when she was confronted in cross examination.
Still the evidence established that at the time Ms Lyel sent the false email she was mentally ill, and Dr Allnutt's opinions about the nature and extent of her illness thus had to be taken into account, given his view that her depressive, anxiety and substance use disorders had contributed to her contempt.
Even so it was accepted that what Ms Lyel had done had "tainted the integrity of the court record". It was also accepted that the administration of justice, the judiciary, the officers of the court and the public have a fundamental right to be able to trust in the integrity of the system, without which there would be mistrust and chaos and further, that all litigants have a right to be heard and the correct position put before the Court.
Thus Ms Lyel accepted that given what she had done, a message needed to be sent to the public at large that such conduct is unacceptable and that the integrity of the administration of justice needs to be maintained at all times.
Nevertheless account also had to be taken of the evidence of her terrible experiences and resulting terrible life, and her explanation for committing her contempt. That was, namely, wanting to have stable accommodation and doing whatever was necessary to keep it, which had led her to stooping to the low level of lying, creating false documents, denying the owners the fruits of their judgments and the ability to be heard on her application.
It was also relevant that she had not only admitted her contempt, but also in cross examination admitted the false evidence she had given in her affidavit. That would be accepted as establishing that the need to denounce her contempt and the weight given to general and specific deterrence had been reduced.

The seriousness of Ms Lyel's contempt

The cases which both parties advanced as to the seriousness of Ms Lyel's contempt must be accepted.
Ms Lyel was charged with: "Contempt of the Supreme Court of New South Wales in that, on 28 April 2016, she wilfully misled the Supreme Court by providing a false email (sent at about 8.49am) purporting to be from one of the two defendants that she named in the proceedings, knowing that such a defendant had not sent the email, for the purpose of obtaining a stay of an eviction order. The wilful provision of the false email involved an intentional misleading of the Court and had a tendency, as a matter of practical reality, to interfere with the administration of justice, by inducing the Court to believe that the two defendants did not object to the extension of the stay order. It accordingly constituted a contempt of the Court."
The agreed facts, other evidence and the cases which the parties each advanced establish that Ms Lyel committed her serious criminal and contumacious contempt of this Court, by her admitted conduct on 28 April.
The course Ms Lyel deliberately pursued involved not only the creation and use of the email address by which she posed as one of the owners of the property to advise that the stay she sought was not opposed. She also relied on that false communication when she appeared before Davies J to obtain the continuation of the stay which he was thereby persuaded to order, not revealing that she had never notified the owners of the proceedings she had brought and that they had not given their consent to the continuation of the stay she had earlier obtained.
Thereby Ms Lyel also denied the owners the opportunity to be heard on her application, which they were entitled to have before the Court exercised its powers in the way that Ms Lyel sought. It is relevant that what she so did was entirely for her personal benefit and their detriment.
In assessing the seriousness of Ms Lyel's contempt it is also necessary to take into account what Ms Lyel actually said in her false email chain: "Dear Philippa, Per my earlier email re my request to NCAT for a new hearing, please be advised that I have sought an urgent hearing at the Supreme Court this morning to secure a stay of eviction. I attach all the correspondence including evidence. I have copied the Magistrates Justice David Davies associate, Anita Singh, on this email. Please let me know if you have any questions. Kind Regards, Louise Lyel. Hi Louise, I won't be attending the hearing, I'm fine for you to get an extension. I've also spoken with CTTT and advised that a rehearing is acceptable to us. I knew you were in hospital and had requested a date later in the week which was fine. Also did the plumber contact you? Regards, Philippa. Thanks Philippa, Appreciate your reply, know your [sic] flat out. No the plumber has not called, but I will call him a bit later today. Thanks, Louise. Dear Anita, My original email bounced back as I had typed in your incorrect email address. Apologies Regards, Philippa."
Ms Lyel's evidence in cross examination establishes that what she said in this email chain about having been in hospital at the time of the NCAT hearing was also false. The extent of the planning involved is revealed by the inclusion of the exchange about the plumber.
What Ms Lyel had sworn in her August 2020 affidavit at [22] about the NCAT proceedings must also be considered. There she said: "I was unsuccessful in my attempt to resist the application and the tribunal made the decision to terminate my lease. I had a tumour in my neck removed at St Vincent's Hospital and I missed the NCAT hearing as a result."
Ms Lyel agreed in cross examination that the NCAT hearing to which she was there referring was that of 15 April 2016, when the order staying the eviction was lifted. That was why she made her application to this Court on 20 April, which came before N Adams J.
Ms Lyel also agreed that the St Vincent's Hospital record of 19 April 2016 showed that she had not been admitted for removal of a tumour, but had presented that day on referral from her GP with a non-infected sebaceous cyst and that it had then been recommended that she follow this up in a month in an ENT outpatient clinic. She agreed that what she had said in her affidavit about missing the NCAT hearing because of the removal of a tumour was thus false.
It was disturbing that Ms Lyel had given this false account in the affidavit which she swore for her sentence hearing, because her cross examination established that this was a continuation of the false accounts which she had given to this Court in 2016 from the outset about the consequences of her ill-health to her failure to appear before NCAT on 15 April 2016, which was untrue.
As well as what she had falsely said in the email chain about the claimed admission to hospital, earlier Ms Lyel had:

said in the handwritten summons by which she commenced the 2016 proceedings, "I was in hospital from Thursday 14 April to last night Monday 19 April";
advanced her case before N Adams J on 20 April on the basis, amongst other things, that "I have released [sic] from hospital last night and I am applying and I have spoken to NCAT this morning for a rehearing because I couldn't attend on Friday because I was in hospital"; and
then relied on a document which she did not rely on in these proceedings, which she claimed reflected her attendance at the emergency department on 14 April (Lyel v Rascoe (N Adams J, 20 April 2016 at 2)).

The evidence thus establishes that on sentence, Ms Lyel was persisting in her 2016 falsehoods about a hospital admission at the time of the NCAT hearing, until confronted with the hospital records in cross examination.
Ms Lyel's then acceptance that this part of her affidavit was false, clearly accepted the inevitable. So had her earlier admission of the contempt which she had committed when she misled Davies J on 28 April 2016. Her conduct that day must thus be considered as being part of a deliberate course of conduct which she had pursued both before and after that day, rather than as a one-off aberration.
As both parties accepted, this is also relevant to the assessment of Ms Lyel's credibility and the genuineness of the remorse which she expressed for the first time in her affidavit, to which I will return.
As is what Ms Lyel said in cross examination about a recent diagnosis of type one bipolar and treated with medication, with the result that she had finally "been able to get clarity on my past behaviour". The result of that clarity had not been, however, either the correction of the part of her 28 August affidavit which was false, until confronted with the Hospital record, or the making of any apology to the owners of the property, who she had harmed by her contempt.
There is no question that this underscores that Ms Lyel committed a serious, criminal and contumacious contempt of this Court in what she did before Davies J.
By Ms Lyel's continued reliance at the sentence hearing on her falsehood about her hospital admission, she deliberately acted again to advantage herself, having earlier relied on that falsehood as part of the deceptions by which she misled Davies J in order to obtain a continuation of the stay of the eviction which NCAT had ordered and which she had not challenged, to which she was not entitled. She thereby also denied the owners of both the outcome of NCAT's unchallenged orders and the opportunity to be heard on her application to this Court.
The result was that Ms Lyel contemptuously interfered with the proper administration of justice, in order to advantage herself and disadvantage the owners. Incredibly, even on sentence she wrongly sought to advantage herself by the untrue affidavit which she swore.
The case advanced on her behalf thus properly accepted the Prothonotary's case as to the seriousness of her contempt. This must be reflected in the sentence imposed upon her.

Principles

There was no issue between the parties as to the relevant considerations in arriving at the sentence. They include the following: 1. There is no maximum penalty for the common law offence of contempt and the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) do not apply to the determination of the sentence. In the result a non-parole period or an alternative to custodial punishment such as a community correction order, cannot be imposed: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [45]. 2. Nevertheless analogous principles to those provided in the Sentencing Procedure Act should be applied: Hawkesbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55 at [126]. 3. This requires that account be taken of the purposes of punishing the contemnor: deterring the contemnor and others in the future from committing like contempt and denouncing the conduct concerned in an appropriately emphatic way. 4. Relevant matters to take into account include those identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself or herself of what he or she did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. 1. The evidence of Ms Lyel's mental ill health and its impact must also be taken into account, given that it may reduce her moral culpability for her offending: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [245], discussed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. It may also make her an inappropriate vehicle for general deterrence; reduce or eliminate the significance of specific deterrence; and make a custodial sentence weigh more heavily upon her. 2. The principle of totality can arise for consideration if a term of imprisonment is imposed, but is difficult to apply in this case, because Ms Lyel is in custody only on remand, having not entered a plea to the further charges she presently faces and the offences for which she was sentenced in July 2020 involving separate and distinct conduct from her earlier contempt, for which a sentence of imprisonment was not imposed.

Evidence

There is no issue that by her contempt Ms Lyel not only avoided eviction until 6 May 2016, thereby wrongly depriving the owners of NCAT's unchallenged orders, but that they also had to take steps to have this Court's orders vacated, undoubtedly suffering cost and harm as a result.
The evidence about the reasons for Ms Lyel's contempt came from her affidavit evidence and what she earlier told Dr Allnutt. I accept that what she so said has to be approached with some caution, given the falseness of the part of her affidavit evidence I have discussed and the memory problems to which she has referred. In the result I am not confident that all that she has said about her very difficult and unusual life experiences was unembellished.
But parts of Ms Lyel's accounts were supported by objective evidence, such as the letter and records attached to her affidavit and the numerous records to which Dr Allnutt referred in his reports. That explains why other parts of her evidence were not challenged in cross examination.
In the result, I am also satisfied that it must be accepted that Ms Lyel has long suffered mental ill health which affected her at the time of her contempt and so must be taken into account in arriving at a sentence.
But I also accept that account must be taken of the extent to which her illness actually affected her ability to reason and act as she did. That is because of all that Ms Lyel was actually able to do in committing her contempt, which sheds light on the extent to which her illness affected her capacity to reason and act.
The evidence establishes that Ms Lyel was well enough in April 2016 to devise a plan which would enable her to avoid eviction as the result of the proceedings which she commenced in this Court. That included creating a Gmail account and the false email chain on which she relied, which contained not only her falsehood about her hospital admission, but also a false exchange about a plumber. She was also well enough to implement her plan, including by appearing before Davies J in person, to successfully advance the concocted case which she had devised while denying the owners an opportunity to be heard.
This may also not be overlooked in assessing Ms Lyel's evidence and the opinions which Dr Allnutt reached, based as they had to be in large measure on her accounts of what she did.
Ms Lyel explained in her affidavit her difficult life experiences and ill health. That was largely consistent with histories which she gave Dr Allnutt, although there were differences in some details. Her account included:

alcoholic parents who were verbally and emotionally abusive to her during her childhood, when she suffered symptoms of depression from early in life, with the result that she had not spoken to her mother since 2005;
having herself abused alcohol from age 16;
having nevertheless been able to study and work to the point of setting up her own successful PR consultancy, with the result that in 2004 when aged 34 she was able to buy and later renovate her home at Cammeray;
commencing an abusive and controlling relationship with a partner who she supported financially, who physically assaulted her on numerous occasions, with the result that she suffered from depression, a miscarriage and an attempted suicide, with the relationship ending in late 2005;
being charged with offences of violence against her former partner, who later pushed her down stairs, but whose version of events was accepted by police, with the result that she was hospitalised with injuries which police had inflicted when she pursued a complaint and then being subjected to a humiliating and scary campaign by them of intimidation and harassment for some weeks;
the loss of friends and her reputation, resulting in struggle at work with the eventual loss of her business and home, when she could not pay loan repayments and the bank pursued foreclosure proceedings after multiple stays of the possession it had sought, finally resulting in the sale of the property;
becoming homeless and living on the streets, without friends or family to rely on, during which time she was raped and assaulted and heavily abused alcohol;
a further dysfunctional relationship, miscarriage, charges of shoplifting offences dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and a further suicide attempt in 2010, which resulted in admission to a psychiatric ward and later diagnosis of a hypoxic brain injury and substantial ongoing memory loss, which had resulted in her continuing to suffer poor memory;
later diagnoses of post-traumatic stress disorder and further periods of hospitalisation in Sydney and later in Tamworth for depression and suicidal thoughts;
meeting a person in Tamworth who became obsessed with her and returning to Sydney in 2012 to avoid her and to commence a new business;
pleading guilty in 2012 to offences involving obtaining property by deception and being evicted from her home and her business failing as the result of false allegations made against her by the person who was obsessed with her;
changing her name in 2013 to get away from this person and starting a new business which also failed because of this person's pursuit of her, with resulting adverse effects on her mental health;
renting the Paddington property in March 2015, while deeply depressed, abusing alcohol and being unable to work, with the result that she fell behind in the rent;
resisting the NCAT proceedings unsuccessfully and then pursuing the proceedings in this Court, committing her contempt because, as she told Dr Allnut, "I was so desperate to stop the impending eviction so that I would not be homeless again and I did not really think about my actions and the consequences";

As to her contempt, Ms Lyel said: "I look back on my offending, including misleading the court so significantly, and I am appalled at what I have done and very sorry. At the time, I know that I was not thinking clearly, so caught up in my own desperation and not considering the implications or the impact. But now, I am deeply embarrassed and I understand the seriousness of my actions. I know the damage that I have caused and could have caused to those that I misled. I am aware that, by misleading the court, I have damaged the administration of justice to gain benefit for myself and damaged the trust that judges have in litigants coming before the court and I am so sorry for causing this damage. I am also aware that benefit I gain for myself through this conduct comes at a cost for the victims being the landlords and agents and I have reflected on this and, whilst I was desperate to avoid losing my home, this is not an excuse to then cause harm to others and I am very sorry to have done so. I have been committed to treatment and setting up healthy supports around me so that I am better placed mentally to have sound judgment and make the right decisions."
In his 7 July 2020 report, Dr Allnutt explained the extensive history Ms Lyel had given him about her life and the ongoing mental health problems she had suffered. He identified that he had been supplied with a March 2010 report from the psychiatrist Dr McKay, notes from Royal North Shore Hospital and Tamworth Hospital, Milton Medical Centre and Dr Davies, as well as a timeline which Ms Lyel had provided. He also referred to a number of her other medical records, which supported aspects of the history she had given. These documents are not in evidence
In relation to her contempt Dr Allnutt concluded: "In regard to the offence of 28 April 2016, given her disorganised lifestyle, absence of supports, persistent history of recurrent depression and associated agoraphobia (anxiety about leaving her place of accommodation), there are reasonable grounds to accept that her mental state contributed to her offending by avoidance of leaving her home as she described."
In his 21 July report Dr Allnutt corrected an error in his earlier report, where he had said that Ms Lyel had been living in the Paddington property in August 2012, when she had been living there in April 2016. He also noted that he had spoken to her again and that she had given an account which did not accord with aspects of the evidence: "She said that on 27 April 2016 she had fallen behind with her rent, having been there for 12 months. She thought she was about $4,000 behind. She was having difficulties with the neighbour across the road who was constantly coming over, banging on her door and threatening her. A real estate agent had told her that that particular person was friendly with the owner of the property she rented. She felt threatened, saying she owed rent and was facing eviction, and these factors compounded her depression and anxiety. She added that due to her depression and anxiety, she had been unable to perform her work and so had been unable to find income to pay the rent. As a result of having fallen behind in the rent, the owners of the property wanted to evict her. She wanted to stay in the property long enough to get more work, to bring her rent up to date. The matter went to NCAT, who made an order for the lease to be terminated. She was unsure when the NCAT meeting occurred. As a result, she applied for a stay of that eviction order and in the context of this she sent the email to the Supreme Court on 28 April 2016. She said she recalled very little of that period. Her memory for events was poor. To the best of her recollection, she understood she had sent an email to the court purporting to be the owner of the property, telling the court that they were fine with her application for stay proceedings. As far as she could recall, she did not think about what she did at the time (with regard to consequences). She said that at the time she was so desperate not to be homeless again, "I thought I'd try anything". She could not recall all the emails she sent and acknowledged them when I reviewed them with her. Regarding not appearing on 5 May 2016, she could not recall why she did not appear or why she asked for a delay. She acknowledged she had been renting out the spare room to obtain money so she could pay her rent. Regarding the offending, she said she now felt highly embarrassed. When she looked back on it now, found it hard to imagine she had done this, but believed that the underlying motivation was her desperation about her circumstances. She was now very regretful for what she had done."

Ms Lyel's case on the elements of the sentence

The case advanced for Ms Lyel was that it was not suggested that her mental health at the time of her contempt was substantially causative of her contempt. But it was submitted that the evidence did establish that it had contributed to her contempt, resulting in a reduction in her moral culpability and a reduced need to denounce her contempt. It was also argued that she was thus an inappropriate vehicle for general deterrence, which should be given reduced weight, and that the significance of specific deterrence was also reduced.
Further, that her punishment should be considered through the prism of a person adversely affected by her disturbed upbringing and an abrupt and traumatic end to a successful life and plaguing mental health issues.
It was also urged that the genuineness of her apology would be accepted, consistent with the admission of her contempt.

Conclusion

I am satisfied that the evidence I have discussed establishes that:

Ms Lyel is not entitled to any leniency on sentence, given that she was not of prior good character. To the contrary, her contempt was not out of character with either her prior or subsequent behaviour, given the terms of her summons, the case she advanced before N Adams J, her adherence in the affidavit which she swore in August 2020 to her false account of having been in hospital at the time of the April 2016 NCAT hearing, and the offences of which she has since been convicted.
The latter pertinently included five offences of dishonestly obtaining financial advantage by deception under s 192E of the Crimes Act, one of making a false or misleading statement in an application under s 136.1 of the Criminal Code Act 1995 (Cth) and five offences of obtain a financial advantage under s 135.2(1) of that Code, for which 2 year community corrections orders were imposed, as well orders requiring payment of $12,770 compensation to victims and conditions that she perform 150 hours community service, undergo drug and alcohol counselling and comply with the treatment plan Dr Allnutt provided in his 7 July 2020 report.
Ms Lyel's admission of her contempt must be taken into account in her favour. But on the evidence I have discussed, it must be accepted that can only have reflected an acceptance of the inevitable.
The genuineness of the remorse which Ms Lyel expressed cannot be accepted, despite what she earlier said to Dr Allnut. Had she genuinely been contrite, she would not have persisted in the false evidence which she gave in the affidavit which she swore after she had been assessed by Dr Allnutt, by which she tried to advance an untrue account as to why she had not appeared before NCAT when the stay of her eviction had been lifted. When that is considered with the absence of any apology or reparation ever sought to be made to the owners of the Paddington property, that Ms Lyel genuinely regretted what she had done, as opposed to the adverse consequences which resulted from her behaviour, was not established.

The evidence also establishes that Ms Lyel's situation was quite unlike that which arose for consideration in Muldrock v The Queen (2011) 244 CLR 120, where it was observed that "The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community": at [54]. Ms Lyel did not have problems of that kind.
Each case where the impact of mental illness on sentence arises to be considered depends on the nature and degree of the impairment in question, the extent of its contribution to the offence and whether or not the sentence can be seen, in the particular circumstances, to have a deterrent value, either specifically or generally: Regina v Matthews (2004) 145 A Crim R 445; [2004] NSWCCA 112 at [26].
As the Prothonotary conceded, I accept that Dr Allnutt's opinions establish that Ms Lyel's mental health problems do reduce her moral culpability for her contempt to some extent, given their effect on her control of her cognitive facilities and emotional restraints, ability to make reasoned or ordered judgments and appreciate the wrongfulness of her acts.
But not with the result that either denunciation of her very serious contempt, or general or specific deterrence can be given but little weight. That is because the evidence establishes that the nature and degree of her mental health problems were not so severe as to have impaired her ability to plan and then implement the various steps by which she achieved the outcome which she pursued by the deceptions she had devised when she appeared before Davies J on 28 April 2016.
Not only does that conduct shed light on the limited extent to which Ms Lyel's mental health problems contributed to her contempt, it must be denounced by the sentence imposed upon her. She and others must be deterred from pursuing such a serious interference in the proper administration of justice which the Court must administer and the rights which others have to participate in proceedings commenced before the Court before orders affecting their rights are made.
The evidence well establishes that in Ms Lyel's case specific deterrence is an important aspect of her sentence, given that there is a real need for others to be protected when she accesses or is involved in the legal system. That was underscored by Ms Lyel's acceptance that she had given false evidence in her August 2020 affidavit. On her evidence in cross examination, there is no question about her understanding of the message which the sentence imposed upon her must convey.
That there was a delay in the pursuit of the proceedings must be considered, as the Prothonotary accepted. That was, however, the result of the pursuit of the investigation and then the time between January 2018 and November 2019 when Ms Lyel could not be located, explained as that was by her evidence as to how she was moving around while involved in the offending she described.
This is thus not a case where the prosecution was long hanging over Ms Lyel, who soon admitted the contempt after she received the show cause letter, with the result that facts were agreed in March 2020 and a hearing date given. As Ms Lyel conceded, it was necessary for adverse consequences flowing from delay to be established by evidence: Coles v R [2016] NSWCCA 32 at [20]. There was no such evidence.

Other cases

There are no cases where contempt has resulted in the Court being misled from conduct of the kind that Ms Lyel pursued, to which the parties were able to draw attention, reflective of the fact that such contempt is relatively rare.
Reference was made to in Her Majesty's Attorney General v Smith [2008] EWHC 250 where Mr Smith had commenced proceedings posing as his friend, Mr Brazier, swearing and signing an affidavit in his name and then also appearing at a hearing as Mr Brazier, when he was granted interim relief. The impersonation came to light when he next appeared with Mr Brazier. On sentence for his contempt, favourable account was taken of Mr Smith having acted out of concern for his friend and falling into the temptation of pursuing his deception in circumstances where it was inevitably going to come to light. His background of having worked helping people in a social work context, having a prior impeccable record and delay, where he had known for some 21 months that he was at risk of imminent sentence, were also taken into account in arriving at the conclusion that mercy should be extended. The result was that a sentence of imprisonment of 3 months was imposed, at the bottom of the "appropriate bracket" of 3 to 9 months identified.
These circumstances are relevantly different to those which here arise, given that Ms Lyel's contempt was not an aberration and that she had acted to advantage herself at the expense of the property owners against whom she had no case, and who she denied the opportunity to be heard by her deception. Her contempt was thus much more serious than that which arose for consideration in Smith, but of course in that case there were no mental health issues to be considered.
In Ronowska v Kus (No 2) (2012) 221 A Crim R 261; [2012] NSWSC 817, Mr Kus, who was not a party to the proceedings, caused orders made to be flouted when he appropriated the proceeds of a sale, failed to lodge any moneys in a controlled moneys account in breach of a court order and misled the court at the hearing when he gave knowingly false evidence, thereby obstructing the course of justice in a tangible and material way for a time. He was sentenced to a term of imprisonment of 18 months.
That case does not seem to be analogous to what here arises for consideration.
In Maslen v Official Receiver (1947) 74 CLR 602; [1947] ALR 489, an accountant who misled a court by obtaining false receipts from creditors was fined 100 pounds and sentenced to 4 months imprisonment. That order was varied to reduce the term of imprisonment to the time already served, 14 days, given a doubt about Mr Maslen's intention to deceive the court with two earlier receipts, "however reprehensible his conduct in procuring them for the deception of creditors and others may have been". The finding of contempt was thus confined to two later receipts. It was also found that it would not be safe to conclude that he had been actuated by any motive other than a desire to secure for the bankrupt a discharge with as little expenditure of money as might be.
Again this case was quite different to what here arises to be considered on sentence, there being no question as to all the steps Ms Lyel had pursued to affect her serious deception when she appeared before Davies J in order to advantage herself as she did and to deprive the owners of their right to be heard on her application. Her contempt was thus clearly much more serious than that which arose to be considered in Maslen.

The term of the sentence

The power to punish for contempt is exercised to vindicate the integrity of the Court and of its proceedings: Lewis v Ogden (1984) 153 CLR 682 at 693; (1984) 53 ALR 53 at 64.
Having taken into account all of the evidence and submissions, I have concluded that Ms Lyel's very serious contempt, striking as it did at the heart of the justice system and pursued before Davies J as it was in order to thwart the eviction which should have resulted from NCAT's unchallenged order and to deprive the owners of their right to be heard on her application, must be punished by a sentence which is ameliorated by the matters I have discussed.
I am satisfied on the evidence I have discussed that no sentence other than a term of imprisonment is appropriate, because they could not fulfil the important purposes of sentencing which must be given effect. There would in any event be no utility in imposing a fine on Ms Lyel, given her circumstances.
I have thus concluded that justice requires that Ms Lyel's sentence must be for a period of 4 months, that being sufficiently substantial to reflect the seriousness of her contempt, but also taking proper account of her mental health problems in the way I have explained. Had she not suffered those problems, her sentence would have had to be longer.

Orders

For these reasons I order that Ms Lyel is: 1. Guilty of the contempt charged. 2. Sentenced to a term of imprisonment of 4 months commencing today, 8 December 2020 and concluding 7 April 2021, when she is entitled to be released. 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. Decision last updated: 08 December 2020

Mental Health (Forensic Provisions) Act 1990(NSW)

Crimes Act 1900(NSW)ss 117, 192E(1)(a), (b)

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