The Prothonotary of the Supreme Court of New South Wales v Coren - [2017] NSWSC 754 - NSWSC 2017 case summary — Zoe

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The Prothonotary of the Supreme Court of New South Wales v Coren

[2017] NSWSC 754

Supreme Court of NSW|2017-05-31|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-05-31

Before

Walton J

Catchwords

[2001] NSWSC 969 Principal Registrar of the Supreme Court (NSW) v Tran (2006) 166 A Crim R 393
[2015] NSWCA 125 R v Dent [2016] NSWSC 444 R v Thomson
R v Houlton (2000) 49 NSWLR 383
[2000] NSWCCA 309 R v Razzak (2006) 166 A Crim R 132

Source

Original judgment source is linked above.

Catchwords

[2001] NSWSC 969 Principal Registrar of the Supreme Court (NSW) v Tran (2006) 166 A Crim R 393[2015] NSWCA 125 R v Dent [2016] NSWSC 444 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309 R v Razzak (2006) 166 A Crim R 132[2006] NSWSC 1366 Waller v Hargrave Secured Investments Ltd (2012) 245 CLR 311

Judgment (30 paragraphs)

[1]

apital Ltd v Anderson (No 2), unreported, 16 May 2013 Provident Capital Ltd v Anderson (No 3) [2013] NSWSC 705 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 R v Dent [2016] NSWSC 444 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Razzak (2006) 166 A Crim R 132; [2006] NSWSC 1366 Waller v Hargrave Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Sentence Parties: The Prothonotary of the Supreme Court of New South Wales (plaintiff) Nicholas Mitchell Coren (defendant) Representation: Counsel: D Kell SC (plaintiff) G James QC (defendant)

[2]

[4]

FACTUAL BACKGROUND AND THE CONTEMPT

The background and circumstances of the contempt are set out in the Agreed Facts dated 13 March 2017.
Mr Coren was admitted as a solicitor of the Supreme Court of New South Wales in August 1999. He obtained an unrestricted practicing certificate in 2002. As at 2012 to 2013, Mr Coren carried on business through a law practice called Thomas Mitchell and Associates.
Barry Station ("the property") is a cattle property located at 282 Barry Road, near Nundle, in northern New South Wales. As at 2006, the property was owned by Mr Anderson.
In 2006, Mr Anderson granted to Provident Capital Ltd ("Provident") a mortgage over the property. The property secured repayments by Mr Anderson of a large sum of money advanced to him by Provident.
In 2009, Mr Anderson defaulted on the mortgage. In 2010, Provident commenced proceedings in this Court seeking, inter alia, an order for the possession of the property. Mr Anderson defended the proceedings and engaged a solicitor (not Mr Coren) and counsel.
On 8 April 2011, the Court made an order in the proceedings restraining Mr Anderson, pending the determination and hearing of the proceedings, from entering the property.
On 9 June 2011, the Court made consent orders which gave Provident possession of the property. Subsequently, in June 2011, Provident engaged Robert Emerton (station agent) to reside on the property as its representative, which he did together with his partner, Tara Bondarenko and their two young children.
By May 2013, Mr Coren had been retained by Mr Anderson as his solicitor in connection with the possession proceedings.
On 8 May 2013, Mr Coren sent an email to Provident's solicitor, Craig Ensor of Henry Davis York, advising that he acted for Mr Anderson and attaching an unsealed notice of change of solicitor and other documents, including an unfiled notice of motion seeking summary dismissal of the proceedings. In the email, Mr Coren said that the earlier proceedings were void by reason of Provident's failure to comply with the Farm Debt Mediation Act 1994 (NSW) ("the FDMA") when it sought to enforce the mortgage over the property. The notice of motion was filed on 3 May 2013 although the sealed copy of defendant's notice of motion was not served on Provident or Provident's solicitors.
On 9 May 2013, when Mr Anderson's motion was listed for return, Provident's solicitor appeared but there was no appearance by Mr Coren and the matter was adjourned to 30 May 2013.
On Friday, 10 May 2013, Henry Davis York issued a letter, by email, responding to Mr Coren's email of 8 May 2013 stating their position that there had been no breach of the FDMA and that the assertions in Mr Coren's email of 8 May 2013 were misconceived and without merit. It appears that difficulties in connection with Mr Coren's email accounts were such that the letter was not received by Mr Coren on 10 May 2013.
On the same day, 10 May 2013, Mr Coren drafted a letter addressed to Henry Davis York ("the letter"). He prepared and finalised the letter in his office during a conference with Mr Anderson. The letter was on the letterhead of Thomas Mitchell solicitors. It stated as follows: 10 May 2013 Henry Davis York Solicitors BY EMAIL: [email address shown] Dear Sir RE: Anderson and Coughlan [sic] ats Provident Capital (In Liquidation) Pty Limited We refer to our email dated 8 May 2013 and note that at the directions hearing on 9 May 2013, the proceedings were adjourned for further directions hearing on 30 May 2913 [sic]. As both the Supreme Court equity proceedings at [sic] common law proceedings are void under s 6 of the Farm Debt Mediation Act, for reasons as detailed previously, the consent orders entered into in the common law proceedings will be deemed never to have been entered into and our client's damages against your client are referable to the amount which will place him in the position he would have been in, if not for the plaintiffs conduct in breach of s 6 of the Farm Debt Mediation Act, will be significant. Of course, under the Corporations Act, our client's claim for damages will be set off, without any reduction which may apply to unsecured creditors in the liquidation, against any amount which it is alleged to be owing by him. Indeed, it may be that our client's claim exceeds the amount alleged owing to your client as he estimates the loss will be many millions of dollars is referable to many issues, such as, conversion of livestock and sale of machinery. Therefore, so as to crystallise our client's loss, we advise that or [sic] client will attend the property at 10.00 am on 11 May 2013 to enter into lawful possession of the property. Please ensure that any persons who may otherwise have been in occupation of the property under the consent orders or otherwise as anticipated by the unlawful possession by the plaintiff, have removed themselves from the property prior to this date. Should our client be prevented from entering into possession of the property on 11 May 2013, such conduct will be relied upon as a component of his claim for damage, aggravated damages and exemplary damages associated with your client's unlawful possession of the property. If you have any enquiries, you may contact our office. Yours faithfully THOMAS MITCHELL SOLICITORS Principal Nicholas M. Coren Ass. Dip. Comp. stud. LLB Associate Ryan Menzies [Emphasis added and underlining removed.]
At the conference on 10 May 2013, Mr Coren provided Mr Anderson with an unsigned copy of the first draft of the letter (hereafter referred to as the "draft letter"). There was no difference in substance between the draft letter and the final version. The only difference between the two drafts was the rectification of spelling errors in the penultimate paragraph of the draft letter. The letter was not received from Mr Coren by Henry Davis York on 10 May 2013.
On Saturday, 11 May 2013 at about 10.30 am Mr Anderson attended the property. He gave a copy of the draft letter to Ms Tara Bondarenko and said: "Read the letter". Ms Bondarenko gave the copy of the draft letter to Mr Robert Emerton. Mr Anderson also placed copies of the draft letter on the gates of the property. Mr Emerton called the police to the property.

[5]

Events Subsequent to the Contempt

A copy of the draft letter was obtained by Henry Davis York on 11 May 2013 through Mr Emerton. At 1.26 pm that day, Henry Davis York sent an email to Mr Coren, which referred to the attendance that morning by Mr Anderson at the property, the handing over of the letter and the attempt to retake possession. The email referred also to the restraining order that this Court made on 8 April 2011. The email attached a copy of the draft letter.
On 13 May 2013, Mr Elliott of Henry Davis York sent an email to Mr Coren objecting to the attendance by Mr Anderson at the property on 11 May 2013. Mr Elliott referred to the injunction to which Mr Anderson was subject, and sought an urgent undertaking from Mr Anderson that he would not attempt to re-enter the property.
On 14 May 2013, Henry Davis York filed a notice of motion on behalf of Provident seeking urgent injunctive relief to prevent Mr Anderson from entering the property. On 16 May 2013, Beech-Jones J heard the motion. Mr Coren appeared for Mr Anderson. On 16 May 2013, Beech-Jones J made an order imposing an injunction, until further order, restraining Mr Anderson from entering, or attempting to enter, the property: Provident Capital Ltd v Anderson (No 2), unreported, 16 May 2013.
On or about 29 May 2013, Mr Coren received notice that his practicing certificate had been suspended and that a receiver and manager had been appointed to his legal practice.
The proceedings were further listed before Beech-Jones J on 30 May 2013. On that occasion, Mr Savage of the Law Society of NSW advised the Court that the contemnor's practising certificate had been suspended the previous week. Beech-Jones J delivered a judgment and, by reason of Mr Coren's conduct in preparing the letter and providing it to Mr Anderson, ordered Mr Coren to pay Provident's costs of the motion on an indemnity basis: Provident Capital Ltd v Anderson (No 3) [2013] NSWSC 705 ("Provident Capital No 3").
Provident Capital No 3 concerned an application by Provident for indemnity costs from Mr Anderson and Mr Coren. When the matter was called Mr Anderson appeared and sought an adjournment. In the course of doing so he made various submissions about Mr Coren's conduct which do not constitute evidence in these proceedings. That application was granted. Mr Coren did not appear for reasons he explained in his evidence in these proceedings to which I will return.
After reciting various aspects of the history of the matters, Beech-Jones J turned to the application against Mr Coren. (I will return to his Honour's observation about the draft letter (at [27]-[29]) later in this judgment, when dealing with the objective seriousness of Mr Coren's contempt).
His Honour made reference to the draft letter and observed that "on the face of it, the letter is addressed to Provident's solicitors and purports to give notice of [Mr Coren's] action. However, I have already found that the letter was not sent. Further, it is clear that Mr Coren gave the letter to Mr Anderson because Mr Anderson brandished it in a laminated form at the property and distributed copies of it around the property" (at [30]).
His Honour continued at [31]: [31] The letter purports to give Provident's solicitors one day's notice of action that Mr Coren must have known was extraordinary and inflammatory in the context of litigation that had been going on for many years. Contrary to the terms of the letter this was not referred to in previous correspondence. There is nothing in the evidence to suggest that on a previous occasion Mr Coren had asserted that the orders made by the court were somehow void, as opposed to attacking Provident's conduct in bringing the proceedings as involving an alleged breach of the Act.
I do not refer to his Honour's observations at [32]-[33], which were contested on the evidence in these proceedings. However, his Honour continues at [34] as follows: [34] The next matter concerns Mr Coren's belief as to the veracity of the assertions made in the letter that the orders of the court are "deemed never to have been entered". Mr Coren declined the opportunity to come to the court to give an explanation for any aspect of his conduct, including as to whether when he wrote the letter he genuinely believed that that assertion was either true or a matter that was capable of some legal justification. It was an assertion that a moment's thought should have caused any reasonable legal solicitor to pause.
As to the assertions referred to in that paragraph of his Honour's judgement the following finding was made at [38]: [38] However, I do find that he did not have any reasonable belief in the truth of the statement. In fact I am satisfied that he was reckless as to whether that statement was either true or not or one that was capable of being justified or not.
Finally, his Honour concluded at [41]: [41] Thus, in the end result, I am satisfied that Mr Coren armed his client with a letter, reckless as to whether it was true or not in asserting that the Supreme Court orders were deemed never to have been entered, and he did so knowing or strongly suspecting that his client would use that letter in an attempt to evict Provident's representatives from the Property. He engaged in that conduct behind the backs of the solicitors acting on behalf of Provident.
Mr Greg James QC, who appeared for Mr Coren, contended that, on the evidence in these proceedings, a conclusion could not be reached that Mr Coren did know that his client would use the letter in an attempt to evict Provident representatives from the property. Nor did he engage in that conduct behind the backs of the solicitors acting on behalf of Provident. He did not resist a proposition that, on the evidence in these proceedings, the observations made by Beech-Jones J in Provident Capital No 3 at [41] were otherwise available (save for the inclusion of the word "strongly" in the paragraph).

[7]

The Prothonotary

The Prothonotary relied upon the affidavit of Alana McCarthy sworn 4 August 2016 (which annexed, inter alia, the consent order of this Court which gave possession of the property, the notice of motion filed by Mr Coren on 1 May 2013 seeking the summary dismissal of the possession proceedings and an order that the proceedings were void under the FDMA (made returnable on 16 May 2013) and the judgment of Beech-Jones J in Provident Capital No 3); the affidavit of Tara Louise Bondarenko sworn on 5 August 2016 and the affidavit of Robert James Emerton sworn 5 August 2016.
Both Ms Bondarenko and Mr Emerton recount their experiences on 11 May 2013 upon the attendance of Mr Anderson at the property. Mr Bondarenko stated that a vehicle pulled up 10 metres from her home and four men alighted one of which was Mr Anderson. One held a digital camera. Before providing a laminated copy of the draft letter Mr Anderson stated to Ms Bondarenko (who was with her children): "You have to get off the property today. I'm getting back what's owned to me for the past four years. I'm now back in ownership of Barry's Station".
Mr Emerton deposed that when he approached Mr Anderson his fiancé handed him the laminated letter and she said to him, "he says we have to get off the property". Mr Emerton called the police.
The Prothonotary also relied upon a pre-sentence report produced by Ms Sheree McGrath, Community Corrections Officer, dated 28 April 2017. That report described Mr Coren as a 46 year old, married man, who resided with his wife of five months and his two children in the Newcastle district. The report described their relationship as stable and that "lines of enquiry" described Mr Coren "as being of good character and one willing to help others and offer his skills when required".
The report also indicated that Mr Coren viewed his actions as "an incredible mistake" and that with hindsight "he reflected that he felt sorry for the farmer involved and that at the time he thought he had taken a good cause of action to assist him. He added that he did not intend his actions to be contemptuous".
The author assessed Mr Coren as being at a low risk of reoffending and that he had been diagnosed with depression for which he was being treated by his doctor and a psychologist.
Under the heading "Assessment and Community Based Sentencing Options" it was observed: It would appear that Mr Coren comprehends the serous nature of his offending, which he viewed as being an incredible mistake on his behalf. His involvement in the offence would appear to have been triggered by an emotional need to assist his client. The current matter would appear to have had a significant impact on Mr Coren and has been a destabilising factor on his mental health. He has however taken steps to stabilise his mental health and focus on cementing a different carer [sic] path in order to support himself and his family financially.
The author of the report indicated that Mr Coren had been assessed as unlikely to benefit from a period of supervision by Community Corrections due to his low risk rating and lack of ongoing criminogenic issues which require intervention.
Mr Coren was, however, assessed as being suitable for a community service order. If such an order is made he should report to the Newcastle Community Corrections. Whilst he has been assessed as being suitable to perform community services work, it was considered that he would not benefit from available developmental programs "due to his assessed low risk of reoffending".

[9]

Personal Circumstances 1. Mr Coren was married in 1998 and separated in 2002. He became the primary caregiver for his children. 2. He obtained an unrestricted practicing certificate in 2002 and became a partner of Thomas Mitchell Solicitors shortly thereafter. He was devoted to the care of his children, despite a busy work schedule. 3. A few days before Christmas in 2009 his father passed away in circumstances which appeared to indicate that his father had committed suicide. His father's death was personally traumatic. He believed he had a nervous breakdown and was drinking and gambling heavily. 4. In June 2010, his grandmother, who was the matriarch of the family, passed away. 5. In September-October 2010, Mr Coren commenced taking amphetamines and was arrested for possession of the same in early January 2011. He was convicted of two offences (one for possession) and fined $500 for each offence (he had an early conviction of driving with middle range PCA for which he received a 12 months good behaviour bond in 2008). There was considerable publicity about the charges which caused humiliation for Mr Coren and his children. 6. In July 2011, Mr Coren's house burnt down. 7. Shortly thereafter he became involved in a medical negligence case in which he appeared as a solicitor advocate because of the withdrawal of counsel (who had advised that the proceedings did not have reasonable chance of success). A further counsel had withdrawn after an unsuccessful motion. There was a dispute in his law firm over the payment of counsel's fees which effectively resulted in the dissolution of the partnership in August 2011. The breakdown of the partnership was acrimonious. Mr Coren took over the business as a sole trader in September 2011. 8. At about the same time a costs order was sought against Mr Coren on the basis that he pursued the medical negligence claim without reasonable prospects for success. After obtaining a declaration that it could pay the cost claim, Law Cover met the cost claim and Mr Coren was advised that there would be a substantial increase in his premiums. 9. It was around this time that Mr Coren increased his drinking and gambling and in early 2013 began taking illicit drugs again. His daughter moved in with her maternal grandmother. 10. In early 2013, he commenced losing staff from his law firm. He also lost clients and his finances were in a parlous state. 11. After the suspension of his practicing certificate Mr Coren worked initially in a pizza shop and then in bulk waste pick-up duties for Local Councils. He completed a traineeship as a copper fault technician which role he continues today. 12. In February 2014, Mr Coren met his current wife who encouraged him to see a GP and a psychologist (he had received no treatment before that time). He ceased taking illicit drugs, drinking in excess and gambling. 13. Mr Coren is effectively insolvent owning only a second hand car. His house was sold after the mortgagee commenced possession proceedings in mid-2013. He lives in a rented dwelling. He also has debts to his failed business and considers that bankruptcy is a real possibility. 14. In May 2016, Mr Coren commenced treatment for depression and undertook treatment with a clinical psychologist. 15. Proceedings to remove Mr Coren from the role of legal practitioner were discontinued but disciplinary proceedings remain outstanding. Mr Coren remains suspended from his practice. 16. On 13 May 2017 he deposed (at [66] of his affidavit sworn 13 May 2017): 66. Ultimately, as a result of my failings, I have lost family relationships, virtually all of my friends, my reputation, my profession, my business, self-respect, finances and possessions. Everything that I worked for, built and developed over twenty years in the legal profession has gone.

[10]

Explanation for the events of 10 and 11 May

In his affidavit sworn 11 September 2016, Mr Coren stated: 1. He advised Mr Anderson that there are currently Supreme Court orders for possession and that "the only way you can resume possession is if they allow you to resume possession". 2. The service of a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) indicated to Mr Coren that, notwithstanding the existence of possession orders, a fresh action for possession was being commenced by liquidators for Provident because they realized there was a deficiency in the previous orders which had, in his view, been taken out with respect to the wrong loan. 3. This confirmed his view that the earlier possession proceedings were liable to be summarily dismissed because of a failure to properly obtain a certificate under the FDMA. 4. There was a miscommunication of the letter to Henry Davis York of 10 May 2013. Had he received a response to such a letter to the effect that the solicitors for Provident denied the consent orders giving possession were invalid then he would have contacted Mr Anderson and told him this and let him know not to attend the property. 5. He did not know a consent injunction was made in April 2011 which restrained Mr Anderson from entering the problem. 6. He did not lead Mr Anderson to do anything with the draft letter and, in particular, did not tell him to give it to anyone present at the property. 7. He failed to attend the ex parte hearing before Beech-Jones J because his practicing certificate had been suspended the previous day and he was "having real trouble functioning in any way". 8. It was also submitted that the Court would readily infer that the contemnor was aware of his obligations as an officer of the Court as he had been in practice for almost 14 years and should be taken as being aware that he could be in contempt if he were to convey to a client that the orders of the Court could be disregarded in the circumstances as presented.
Later, in his affidavit sworn 13 May 2017, at [52]-[54], he stated: 52. When Mr Anderson initially came to see me in late April 2013 for advice and representation associated with possession proceedings in relation to his farm, my professional and personal life were in shambles. 53. I tried to do the very best I could for Mr Anderson. I was aware at this time that many farmers were in trouble in regional NSW. I thought that, at least, if we could set aside the possession proceedings, then Mr Anderson would be able to sell the property himself and have something left over after payment of the mortgage. 54. I now realise that I was probably trying to give hope to Mr Anderson, where, in reality, no hope actually existed. Also, I realise that my emotional and psychological state back then affected my judgment, specifically insofar as drafting the 10 May 2013 is concerned. Also, however, there were other issues that I did not attend to, such as, obtaining the complete file from his previous solicitor and so on. Over the course of my professional life, I would always ensure that a client's file with his or her previous solicitor was obtained before I formally took over a new file. In this case, however, I recall that Mr Anderson was very anxious and I was aware that he owed his previous solicitor monies for costs.

[11]

Contrition and Apology

Mr Coren gave the following evidence under the heading "Apology" in his affidavit of 13 May 2017 as follows: 2. I wish to sincerely and completely apologise for my conduct associated with the drafting of the 10 May 2013 letter. It was not my intention to be contemptuous, however, I can now readily see how drafting the letter date 10 May 2013 and giving a copy of the draft letter to Mr Anderson had the tendency to frustrate the possession orders made on 9 June 2011. I understand that from the letter itself, Mr Anderson believed he had sufficient ammunition to go to the property and tell the occupants that they had to leave. 3. Again, looking back, I cannot explain how it was that I believed the 10 May 2013 letter could have achieved any proper result. A Notice of Motion had already been filed seeking orders for the summary dismissal of the possession proceedings and it was obviously proper to wait for the Notice of Motion to be heard as this would have determined whether the possession orders could be set aside. 4. I am extremely remorseful over my conduct and regret absolutely that I ever contemplated drafting the 10 May 2013 letter. I was trying to achieve a result for my client but drafting the 10 May 2013 letter went well beyond proper bounds.
Associate Professor Wood diagnosed that at the time of committing the "offence" Mr Coren was, "in all clinical probability", suffering from the following "comorbid mental disorders for some time": • Major Depressive Disorder, with Melacholic (as well as catatonic like) Features, Single Episode, Moderate (DSM-5 296.22) to Severe (DSM05 296.23), against a background of chronic Dysthymia (DSM05 300.4); • Personality Disorder, Cluster B, Moderate (DSM-5 301.89); • Stimulant (Amphetamine-type) Substance Use Disorder, Moderate (DSM-5 304.40); • Alcohol Use Disorder, Moderate to Severe (DSM-5, 309.90); • Gambling Disorder (DSM-5 312.31) Disorder (DSM-5 312.31).
An explanation was provided for the first of those conditions in the following terms: Mr Coren reported to have felt emotionally and physically unable to a) "get out of bed" for a number of days and subsequently b) to leave the home after learning that his Practising [sic] Certificate had been suspended. His description of being unable to "get out of bed" and subsequently leave the home is symptomatic of a brief catatonic like episode.
As to Mr Coren's failure to appear before this Court on 30 May 2013 it was opined that it is clinically probable that he, consistent with s 4 of the Mental Health Act 2007 (NSW), "would have satisfied the definition of mental illness in that he was suffering from a sever disturbance of mood and demonstrated sustaining, repeated irrational behaviours".
A treatment plan was recommended by the psychologist which included treatment by a psychiatrist, psychologist or reviewing specialist and attendance upon a treating psychologists rooms initially on, at least, a fortnightly basis. There would also be periodic monitoring by Mr Coren's GP. Mr Coren has acted upon the plan.

[12]

Submissions of the Prothonotary

On behalf of the Prothonotary, the Crown advocate, Mr David Kell SC, submitted that the penalty for the common law offence of contempt is at large. It was contended that, in sentencing a contemnor for contempt of court, the general principles to be applied were those set out in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 ("Maniam") and that regard should be had to the purposes for which a court may impose a sentence on an offender under the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act").
The Crown advocate contended that Mr Coren's conduct was objectively serious. His correspondence wrongly asserted that the orders made by the Supreme Court were void, that Provident had been in unlawful possession of the property and that Mr Anderson was entitled to enter into possession of the property the following day on the basis that orders of the Supreme Court would be "deemed never to have been entered into". Reliance was placed, in that respect, upon the judgment of Beech-Jones J of 30 May 2013.
From this submission it was contended that the Mr Coren's conduct had a tendency, as a matter of practical reality, to frustrate the orders of the Supreme Court made on 9 June 2011 and thus interfere with the administration of justice.
It was contended that the offence may be regarded as within the low-medium range of objective seriousness.
The Court should, it was contended, have regard to the actual consequences of the contempt which were that, following the preparation of the draft letter and its provision to Mr Anderson by Mr Coren, Mr Anderson did attend the property and engaged in conduct consistent with a view that he was entitled to disregard the orders of the Court.
It was submitted that the motivation for the contemnor's conduct was not entirely clear but that it may be inferred that he was motivated by a desire to quickly secure what he perceived to be a positive outcome for Mr Anderson, a new client. In pursuit of this goal Mr Coren was reckless as to the implications of drafting a letter in the terms that he did.
The Court should also have regard to the criminal history of Mr Coren including a conviction in 2011 for possession of a prohibited drug.
As to personal deterrence, it was recognized that Mr Coren did not have a practicing certificate at the present time, that it appears he has some insight into the circumstances of the offence and that the pre-sentence report indicated that he had a low risk of reoffending.
The Crown advocate made submissions concerning the general deterrence. It was submitted that it was of fundamental importance that orders of the courts, once pronounced, be obeyed and not frustrated. It is imperative that persons be left in no doubt that conduct by a person, including a member of the legal profession, which has a tendency to frustrate the orders of the court, and the administration of justice, is unacceptable.
Whilst Mr Coren identified strong subjective factors, the Court should not lose sight of the importance of deterrence and, in particular, general deterrence. The contempt in this case was deliberate conduct by an officer of the Court which had the tendency to frustrate orders of the Court.
Nor should the consequence of a conviction constitute a reason why there would be any deflation of significance of general deterrence.
The plea of guilty but Mr Coren must be taken into account.
It was submitted that the Court should not allow a maximum discount for the plea but rather a discount in the range of 10-15%.
The Crown advocate made submissions as to penalty. It was submitted that there was a wide range of penalties available. However, the Prothonotary submitted that the Court would not be falling into appealable error by imposing a penalty or sanction that was not full time custody.
As to the application of s 10 of the Sentencing Act it was submitted that two concerns arise. The first is that contempt was committed by an officer of the Court: The Prothonotary of NSW v Battye [2017] NSWSC 48 ("Battye") at [48] (per Schmidt J). Secondly, the Crown advocate reiterated his submissions as to the significance of general deterrence in this matter.

[13]

Submissions on behalf of the Contemnor

The written and oral submissions made on behalf of the contemnor were, in summary, as follows: 1. The contemnor's conduct in drafting the draft letter and supplying it to his client was reckless as to the use the client might put it to. 2. The conduct had an objective tendency to frustrate the orders of the Court of 9 June 2011. 3. Further, Mr Coren should have realised that Mr Anderson might act as he did, although he did not know that his client would do so and did not intend that his client would act in that way. 4. Mr Coren should have realised that the order of the Court remained valid and effective unless and until set aside by the Court, notwithstanding the provisions of the FDMA. His belief was that there was some basis for asserting that the possession proceedings were void and filed a notice of motion to seek relief in that respect. 5. The letter asserted that Mr Anderson would enter into possession of the property but also said that certain events would follow should Mr Anderson be prevented from entering into possession of the property. 6. The contemnor lacked judgment but he did not deliberately seek to defy the orders of the Court. 7. It is not alleged that Mr Coren directly advised Mr Anderson that he could ignore the orders and could retake possession of the property. Nor did Mr Coren deliberately fail to advise Mr Anderson he would be in contempt of the Court in the circumstances "surrounding the letter", even though there is no doubt that Mr Anderson would not have attended the property, had he not been provided with the draft letter. He concluded that by the draft letter he could ignore the possession orders. 8. It should not be concluded that Mr Coren wished Mr Anderson to give a copy of the draft letter to the occupants of the property otherwise he would have prepared a final version of the letter for that purpose. A final version was due to be sent to Henry Davis York Solicitors. That did not occur. 9. An affidavit of Mr Anderson was attached to the affidavit of Mr Coren of 11 September 2016. Mr Anderson said that he was advised that there was an implied right of entry to the property and that he intended to ask permission to go to the property. 10. His conduct was not motivated by profit or personal gain. 11. The reckless behaviour of the contemnor occurred in circumstances where his judgment and thinking were impaired as he was suffering from psychological illnesses. 12. The contempt was not contumelious or persevering. 13. The offence is at the low range of seriousness. 14. It is accepted that the attendance of Mr Anderson on the property caused severe inconvenience and distress to those that were approached by him. However, "everyone's position had been restored". It was not alleged that the contemnor advised Mr Anderson to place copies of draft letters on the gates of the property. 15. As a number of reasons were provided as to the conduct of the contemnor. The first was that the contemnor was mistakenly seeking to apply the provisions in Waller v Hargrave Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4 to contend that the enforcement action commenced in relation to a mortgage was in breach of the FDMA and void. It was also contended that, as Provident already had possession of the property, Mr Coren believed that the service of a notice under s 57(2)(b) of the Real Property Act 1900 by Provident was consistent with a potential belief by Provident that the possession orders were likely set aside. Thirdly, Mr Coren admitted in his third affidavit that he was probably trying to give hope to Mr Anderson where, in reality, no hope actually existed. This was a reflection of his emotional and psychological state.
Mr Coren made a number of submissions regarding deterrence. First, it was contended the prospect of the contemnor reoffending is so minimal as to be non-existent. The contemnor had apologised for his conduct and understood how his conduct required a plea of guilty to the revised charge.
Secondly, the contemnor accepted there was a need for general deterrence and denunciation of the conduct, the latter being an important consideration in contempt proceedings. However, general deterrence and denunciation associated with contempt proceedings is relative to the character and seriousness of the contempt involved.
The Prothonotary accepted that the seriousness of the offence is low-mid range and no longer alleged that the contemnor was engaged in professional misconduct (the removal from the role proceedings had been discontinued by consent).
Mr James QC submitted, the adverse findings made in Provident Capital No 3, the inevitable denunciation of Mr Coren by the Court in this sentencing judgment and cost orders made by Beech-Jones J and in this matter should constitute sufficient denunciation.
As to the personal circumstances of Mr Coren it was contended that the contemnor had embarked upon a voluntary course of psychological treatment and rehabilitation.
Further, he had evidenced his remorse by the plea, the apology and his denunciation of his own conduct. There is positive evidence of actual rehabilitation. The pre-sentence report refers to his good character and his willingness to help others.
The contemnor's present employment and future occupational prospects may be affected by a conviction being recorded against him.
There is no cause for a custodial sentence particularly after four years since the conduct. It is accepted that a sanction is appropriate but not a fine as the contemnor is essentially impecunious and will have to meet two costs judgments.
In all, it was submitted that an order should be made under s 10 of the Sentencing Act and that the contemnor should be placed on a good behaviour bond for a period of 12 months. The factors which prevented making a s 10 order in Battye were not present in this matter and particularly the matter is not as serious as Battye where the conduct was in the high range.

[14]

SENTENCING PRINCIPLES TO BE APPLIED

There was no demur to the principles applicable to the determination of this matter as articulated by the Crown advocate.
In sentencing Mr Coren the requirements of the Sentencing Act must be observed to include the purposes for which a court may impose a sentence on an offender, as listed in s 3A of the Sentencing Act, namely: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of the crime and the community.
The general principles to be applied in sentencing a contemnor for contempt of court were outlined by the Court of Appeal in Maniam (a case of refusal to attend court in response to a subpoena). At 316-317, Kirby P identified the following matters as relevant to the sentencing exercise in the context of offences of contempt of court: 1. The objective seriousness of the contempt; 2. the contemnor's culpability; 3. the contemnor's contrition; 4. The likelihood that Mr Coren will reoffend; and 5. The economic cost to the court system arising from the contempt.
In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 (a case involving a contempt by refusal to give evidence at the Royal Commission into the NSW Police Service) Dunford J listed 10 factors relevant to sentencing for contempt: 1. The seriousness of the contempt proved. 2. Whether the contemnor was aware of the consequences to himself/herself of what he/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 had received any benefit by his/her conduct. 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. 10. Denunciation of the contempt.
These factors, where, applicable, are commonly referred to by judges when sentencing for contempt of court: see Battye at [13]; Canterbury City Council v AH Ahmed [2016] NSWLEC 160 at [17]-[18] (per Robson J); Trad v Pickles Auction Pty Ltd [2006] NSWSC 1177 at [8]-[9] (per Hamilton J); Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 ("Jando") at 532-536 (per Studdert J); R v Razzak (2006) 166 A Crim R 132; [2006] NSWSC 1366 at [43] (per Johnson J); Prothonotary of the Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 at [14]-[15] (per Harrison J) (see also Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964 at [63]-[90] (per McDougall J) and Principal Registrar of the Supreme Court (NSW) v Tran (2006) 166 A Crim R 393; [2006] NSWSC 1183 at [34]-[35] (per Buddin J)).
Another formulation of the factors relevant to sentencing for contempt was stated by Garling J in Commissioner for Fair Trading v Rixon (No 3) [2014] NSWSC 1279 at [21]: Matters which are relevant to the imposition of a penalty for contempt include; the nature and circumstances of the contempt, the impact or likely impact of the contempt on the administration of justice, the extent of the contemnor's culpability for the conduct in question, and whether the contemnor has demonstrated genuine contrition and proffered a full and ample apology. (See also, Paccar Financial Pty Ltd v Menzies (No 2) [2015] NSWSC 1622 at [18]-[20], per Rothman J).
Section 21A of the Sentencing Act may be applied to assess aggravating, mitigating and other factors relevant to sentencing: Jando at 537.
Punishments in other cases may be of only limited assistance as each case depends upon the Court's assessment of the relevant facts.

[15]

Objective seriousness of the contempt

The contempt in this matter may be described as consisting of two elements. First, the draft letter prepared by Mr Coren wrongly asserted that the orders made by the Supreme Court were "void" and that Provident Capital had been in "unlawful possession" of the property. Further, Mr Coren asserted in the draft letter that Mr Anderson was entitled to enter into possession of the property the following day on the basis that, having regard to the FDMA, orders of the Supreme Court would be "deemed never to have been entered into". Secondly, the contemnor provided the draft letter to his client Mr Anderson.
It was contended, as a factor diminishing the objective seriousness of the offence that, even though the draft letter asserted Mr Anderson may enter into possession, it also contemplated there may be a rejection of entry (which fact would be relied upon in seeking, inter alia, damages). I do not accept this component of the draft letter offers any real amelioration of the contempt as this aspect of the draft letter would only come into operation after Mr Anderson attended upon the property and to potentially made the assertions contained in the draft letter as referred to in the previous paragraph of this judgment. At best for the contemnor, this consideration may warrant a minor alleviation with respect to any consideration of the actual consequence of the contempt.
I agree with the submission of the Prothonotary that the criticisms that Beech-Jones J made of the contemnor's draft letter, in Provident Capital No 3 at [27]-[29] are, with respect, compelling: [27] The letter of 10 May 2013 has a number of troubling features. Firstly, although not expressed well, its message is clear. It asserts that the consent orders made by this court are void ("deemed never to have been entered"), because of some alleged failure on the part of Provident to comply with s 6 of the Act. This is said by the letter to have the result that Mr Anderson is free to ignore those orders and to take possession of the Property. These assertions are, of course, entirely misconceived. [28] The decision in Waller [Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311] confirmed that, where applicable, a failure to comply with s 6 of the Act will, at least for a period, prevent a financier from proceeding to enforce its security over some agricultural land in some circumstances. However, it is a completely different matter to assert that a failure to comply with s 6, even if established, has the effect that orders of this court granting possession are deemed never to have been entered. To the contrary, orders of this court are valid unless and until set aside [29] At most, the possible existence of a non-compliance with s 6 of the Act might have granted a basis for Mr Anderson to apply to set aside the consent orders for possession, if the preconditions for attacking the consent orders were otherwise established. However, the existence of such a breach, in and of itself, could never be an excuse for ignoring court orders."
Returning to the observations of Beech-Jones J in Provident Capital No 3, his Honour made a further observation at [41]. That part of those observations, which is apt, upon the evidence before the Court in this matter (the full extract of the paragraph appears at [28] of this judgment) is as follows: [41] Thus, in the end result, I am satisfied that Mr Coren armed his client with a letter, reckless as to whether it was true or not in asserting that the Supreme Court orders were deemed never to have been entered, and he did so … suspecting that his client would use that letter in an attempt to evict Provident's representatives from the Property.
I accept the submissions of the Prothonotary that the conduct that the contemnor engaged had a tendency, as a matter of practical reality, to frustrate the orders of the Supreme Court (made on 9 June 2011) and thus to interfere with the administration of justice in that: 1. it was likely that Mr Anderson would read the draft letter and accept the views expressed in it that the consent orders were void and of no effect; 2. it was likely that Mr Anderson would act in accordance with the draft letter and attend the property at 10.00 AM on 11 May 2013 and attempt to enter into possession of the property; and 3. it was likely that Mr Anderson would produce the draft letter to the occupants as justification for, or in explanation of, his attempt to enter into possession of the property.
As Beazley P stated in Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 ("Rumble") at [60]: [60] It is of central importance to the proper function of the rule of law and the effective administration of justice that orders of the court are, and are treated as, valid until set aside. The court's power to punish for contempt for failing to obey a court order is the means by which the court's authority in respect of its orders is maintained. As the High Court stated in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107: "Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced."
(It may be noted that Beazley P was in dissent in this matter, but a similar opinion was held by the majority: McColl JA at [92] and [95] and Basten JA at [114]-[116], applying New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32] and [36] (per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ)).
There were some matters relied upon by the contemnor that I consider must be taken into account as factors which moderate, to the extent identified, the objective seriousness of the contempt.
I accept the submission of the contemnor that, in assessing the objective seriousness of the matter, the contemnor should not be taken as directly advising his client as such to take the draft letter to the property or advising Mr Anderson that he could ignore the orders of this Court (as will be later noted, a particular in similar terms was deleted when the further amended summons was filed).
It may also be accepted that Mr Cohen did not actually know Mr Anderson would act in the way he did (in the sense that he was informed he would so act) or intend his client to so act (he did not, for example, give his client a final signed version of the letter).
On balance, I consider, however, the appropriate conclusion to be drawn from the circumstances of the matter is that the contempt was objectively serious. Without detracting from my earlier findings in this respect, some further observations may be made. Mr Anderson would not have taken the steps he did without the draft letter was provided to him. Upon the receipt of the draft letter, the real likelihood was that Mr Anderson would act as he, in fact, did on 11 May 2013. Mr Coren should have anticipated, and must have suspected, such an outcome. He behaved recklessly in preparing and providing Mr Anderson with the draft letter in the circumstances.
Further, I accept the approach adopted by Schmidt J in Battye (at [15]) that, in reliance upon the observations of Forrest J, with respect to the proper administration of justice, in The Queen v Witt [2016] VSC 142 at [112], "officers of the Court … must be held to a higher standard of behaviour than lay persons". (It should be noted that her Honour was there dealing with conduct engaged in whilst the contemnor was not acting in his capacity as a legal representative).

[22]

General deterrence and denunciation of the contempt

It was accepted by Mr James QC that there was a need for general deterrence and denunciation of the conduct of Mr Coren is relevant in this case.
In Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741 Kirby P referred to the need to ensure that contemptuous conduct "is emphatically denounced and effectively deterred." This was said by his Honour to be "woven through the language of the courts in their approach to penalty" in contempt cases.
In R v Dent [2016] NSWSC 444 ("Dent") R A Hulme J stated (at [53]): [53] To that collection of sentencing principles I would respectfully add reference to Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 where, at 741, it was said that it is appropriate to bear in mind the purposes of punishing the contemnor: emphatic denunciation and effective deterrence.
James J, in Department of Fair Trading v O'Keefe [2002] NSWSC 398 at [9], relevantly observed: [T]he offence of contempt of court places particular emphasis on, not only personal deterrence, but also the requirement that an offender be prepared to recognise the authority of the court, so that the processes of justice may not be subverted by some such conduct as an offender has performed or by others who might by reason of some light punishment of such persons be similarly minded.
The remarks of Studdert J in Commissioner for Fair Trading v Oliver [2004] NSWSC 722 at [24] are also apposite: Moreover, the conduct of the defendant is to be denounced in an emphatic way by the sentence which is imposed. It has to be emphasised that the particular purpose to be served in the punishment of those guilty of contempt is to ensure "the undisturbed and orderly administration of justice in the courts according to law."
I accept the submission of the contemnor that the significance of general deterrence and denunciation with contempt proceedings is relative to the character and seriousness of the contempt involved. It may also be accepted, in that respect, that neither party submitted that the contempt the subject of these proceedings was in the high range (although, strictly speaking as a matter of law, ranges of this kind are inapposite in the present matter).
Further, I accept that some measure of general deterrence and denunciation will be achieved by the manifest adverse findings found in Provident Capital No 3 and this judgment (which will also be published in a public forum) and the adverse consequences of costs orders made in Provident Capital No 3 and the cost order the contemnor accepted would be made in this matter.
However, I reject the submission of the contemnor that these factors represent sufficient denunciation and general deterrence in the present matter.
Mr Coren's primary obligation was to advise his client to comply with the Court's orders. His reckless conduct led to the preparation of a document from which his client understandably concluded that the Court's orders could be disregarded. Without repeating the earlier extract from Rumble, it is of central importance to the proper administration of the rule of law and the effective administration of justice that orders of the Court are, and are treated as, valid until set aside. It is imperative that there be no doubt in the community and, in particular, amongst legal practitioners that conduct of this kind which has the tendency to frustrate orders of the Court is unacceptable.

[23]

Personal Circumstances

The Crown advocate accepted, correctly in my view, the contemnor has a strong subjective case. That conclusion may be readily gleamed from the summary of the evidence of his personal circumstances as set out in paras [44] and [48]-[51] of this judgment.
It will be observed that those passages of the judgment also addressed Mr Coren's mental disorder and psychological treatment.
There was no evidence the contemnor was not fully aware of his actions. However, I am prepared to accept that Mr Coren's judgment was affected by the many personal difficulties he experienced at the time and his mental disorders. (I note that is was not submitted that the contemnor's moral culpability may be reduced by virtue of these factors but I have nonetheless had regard to these factors in favour of the contemnor).
Further, I accept as a further subjective feature that the contemnor has embarked upon a voluntary course of psychological treatment and rehabilitation. By his apology he denounced his own conduct and by these voluntary steps he has shown positive evidence of actual rehabilitation. I accept, for reasons earlier given, the contemnor has demonstrated remorse.
The pre-sentence report which described Mr Coren as being of good character and one who is willing to help others and offer his skills when required.
Attention was drawn by the contemnor to his parlous state of finances, which will be added to by any cost order. This is again a factor relevant to sentencing Mr Coren.
Lastly, the contemnor has submitted, without detail, that his present employment and future occupational prospects may be effected.
All of these factors together with the plea of guilty (to which I will now turn) entered by the contemnor are mitigating factors which should result in a discount on his sentence.
The Prothonotary did not suggest there were aggravating factors. However, the contemnor had prior criminal convictions. Those convictions are of a different character to his present conduct and were not serious personal violence offences.

[24]

Plea of guilty

Mr Coren's plea of guilty must be taken into account: ss 21A(3)(k) and 22 of the Sentencing Act; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Dent at [59] (per R A Hulme).
The proceedings were commenced by summons on 17 December 2015. The summons was amended on 29 June 2016. The particulars continued to incorporate at that time a particular that Mr Coren told Mr Anderson to take the letter to the property (although to this was added that Mr Anderson was to hand a copy to Mr Emerton or whoever was at the property).
The Prothonotary's evidence was served in all respects, save for one minor affidavit, by 5 August 2016.
As earlier mentioned, on 27 February 2017, Mr Coren, through his legal representatives, indicated an intention to plea guilty. That was followed by execution of an agreed statement of facts on 13 March 2017 and the plea being entered before Fagan J on 16 March 2017 accompanied the filing of the second further amended summons. That was the day fixed for the trial of Mr Coren for contempt.
By the second further amended summons, the declaration sought was expanded to include the particulars of the conduct which were said to have a tendency to frustrate the orders of the Court. Allowing for some reframing, the charge was materially the same as previous versions. However, the particular of the charge that Mr Coren told Mr Anderson to take the letter to the property was deleted in favour of a particular that Mr Coren gave an unsigned copy of the letter to Mr Anderson (consistent with the evidence in this matter). In the result, the conduct pleaded in the final paragraph of the amended summons to that effect was deleted (see para 16 of the amended summons).
As to the discount for a plea, the contemnor relied upon the fact an indication that a plea would be entered was given before trial and that the summons was amended at the date which had been fixed for the trial.
Reference should be made to the judgment of the Court of Criminal Appeal in Haines v R [2016] NSWCCA 90 (referring in particular to R v Borkowski (2009) 195 A Crim 1; [2009] NSWCCA 102; R v AB [2011] NSWCCA 229 and R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56) as follows (at [22]-[27]) (per Ward JA, Price and Adamson JJ) in which the following principles relating to discounts for the utilitarian value of pleas of guilty were discussed: [22] In R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) said, in the course of setting out a guideline for the application of the discount for a guilty plea (at [160]): (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (my emphasis) [23] Spigelman CJ noted that a discount towards the bottom of the range is appropriate for late pleas, for example, those entered on the date fixed for trial (at [155]) but also that the complexity of the issues about which evidence will have to be gathered and adduced will affect the value of the plea: the greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea (at [154]). His Honour also noted that a discount within the range specified will not mean that a trial judge's exercise of discretion cannot be subject to appellate review (at [159]). [24] In R v Borkowski [2009] NSWCCA 102 ; (2009) 195 A Crim R 1 at [32], Howie J (with whom McClellan CJ at CL and Simpson J agreed) noted that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced (referring to Stambolis; Nguyen v R [2008] NSWCCA 280), but nevertheless implicitly accepted (at [31]) that there may be exceptional cases arising from the peculiar factual situation in a particular case where a maximum discount (that might not otherwise be appropriate as a matter of general practice) might properly be awarded. [25] In Stambolis Howie J said (at [11]): … There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. [26] Similar observations were made by Howie J (Beazley JA, as her Honour then was, and Hislop J agreeing) in R v Nicholson [2010] NSWCCA 80 (at [36]). [27] However, Bathurst CJ in R v AB [2011] NSWCCA 229 said (at [3]) that, while courts should generally continue to follow the approach in Borkowski, "the principles have to be applied by reference to the particular circumstances in any case". One such exceptional case was Atkinson v R [2014] NSWCCA 262, where the applicant had instructed his solicitors to enter guilty pleas prior to his first appearance in the Local Court, but (unbeknownst to him at the time) the instructions were not carried out.
In this matter, the contemnor did not enter his plea at the earliest opportunity, but did so prior to the trial. Further, the settlement of an agreed statement of facts prior to trial may have assisted in the efficient disposition of trial, although it must be noted that the evidence for the Prothonotary was in a considerable time before the settlement of such facts. There was a change in the particulars of the charges at the date of the trial which was a material change to the Prothonotary's case but it may be doubted if it could be described as constituting an exceptional case when the reason for delay may be taken into account in assessing the utilitarian value of a plea of guilty as discussed in R v AB.
In my view, the discount afforded the contemnor for his plea of guilty should be 20 per cent.

[26]

Available penalties

Part 55, rule 13 of the Supreme Court Rules 1970 (NSW) provides that the Court may punish an individual for contempt by committal to a correctional centre or fine or both: r 13(1). Additionally, the Court may: "make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security": r 13(3).
Rule 13 in Pt 55 does not limit the form of punishment this Court may impose for contempt. The punishment imposed on Mr Coren must be that the Court considers necessary and appropriate in the exercise of its inherent jurisdiction to safeguard the administration of justice and uphold the rule of law: Maniam at 314.
The Sentencing Act applies to the sentencing of persons convicted of contempt: Jando at 538, and, in the result, the Court may impose any of the punishments available under the Sentencing Act to sentence a person for contempt: NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [25] (per Campbell J); Crane Distribution Ltd v Gary Van Schellebeeck [2009] NSWSC 263 at [32] (per Einstein J).
The range of potential punishment options available under the Sentencing Act include: 1. imprisonment (s 5); 2. home detention (s 6); 3. an intensive correction order ("ICO") (s 7); 4. a community service order (s 8); 5. a good behaviour bond (s 9); 6. dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program (s10); 7. conviction with no other penalty (s 10A); 8. deferral of sentence (s 11); 9. a suspended sentence of imprisonment (s 12); and 10. a fine (s 14).
Home detention can be imposed only by "a court that has sentenced an offender to imprisonment": s 6(1). It is a means by which a sentence of imprisonment can be served and, therefore, is not available if the court does not first sentence the offender to a term of imprisonment (and then only if the term of imprisonment is not more than 18 months).
An ICO is similarly an order providing a means by which a sentence of imprisonment, for not more than 2 years, may be served: s 7(1). The Court must first have referred the offender for assessment as to his or her suitability for intensive correction in the community: s 69. The court may make an ICO with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community: s 67(4).
By contrast to home detention or an ICO, a community service order is imposed by a court as an alternative to a sentence of imprisonment: s 8(1). In imposing a community service order, the court must specify the number of hours that the offender is to perform community service work.
Mr Coren was assessed as being suitable for such an order. The pre-sentence report indicated that there were no impediments to Mr Coren completing a community service order, in accordance with s 86(1) of the Sentencing Act. Such a favourable assessment report does not bind the Court, but it must obviously be taken into account.
There were also no criminogenic factors identified in the pre-sentence report, which would be addressed by Mr Coren's supervision by Community Corrections. That would explain why Mr Coren was not assessed to be suitable for an intensive correction order, a sentencing option only available on such an assessment (see s 67(4) of the Sentencing Act).
Clause 23 of the Crimes (Sentencing Procedure) Regulation 2010 (NSW) specifies the community service orders which may be imposed by reference to the maximum terms of imprisonment which can be imposed for the offence in question. Where the maximum term of imprisonment exceeds 1 year, community service not exceeding 500 hours may be imposed.
As Schmidt J noted in Battye (at [58]): That regulation has no direct application in this case, because there is no maximum sentence for contempt, but it does shed light on the underlying public policy "about the comparability of maximum sentences of imprisonment, and maximum sentences of community service order, for the one type of offence" (see NCR Australia v Credit Connection [2005] NSWSC 1118 at [94]).

[27]

The Penalty

Whilst general deterrence and denunciation of contempt must play an important role in this matter and the contempt is objectively serious, I do not consider this to be an appropriate matter for a penalty of imprisonment having regard to those factors which, to some extent, moderate the seriousness of the contempt and the strong subjective features of the matter. I also note that four years has elapsed since the contempt.
The contemnor sought that the Court exercise its discretion under s 10 of the Sentencing Act and drew attention to the following passages from the judgment of Schmidt J in Battye (at [50]-[51]): [50] In Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] FCA 946 an order of the kind Mr Battye seeks was made in favour of a solicitor. That solicitor had admittedly breached an order restricting access to subpoenaed documents in respect of which questions of confidentiality arose, when they were supplied to an expert, without prior notice of the name of the expert being given, as the order required, so that the expert could provide written confirmation of the receipt of confidentiality orders. That admitted contempt was found to have involved civil, not criminal contempt, in circumstances where the solicitor had himself drawn the breach to the Court's attention and had pursued steps to comply with so much of the order, as then could still be complied with. [51] The nature and seriousness of that contempt, having been neither deliberate, nor pursued in pursuit of personal gain, was clearly very different to that which arises for sentence in Mr Battye's case.
It was upon this basis the contemnor submitted: In these proceedings, the factors absent from Battye, which prevented the Court from making a s 10 order are clearly present. That is, it is neither alleged that the contemnor acted deliberately nor that he acted in pursuit of personal gain. Again, the matter of seriousness of the offence was raised in Battye as a most poignant factor. In Battye, the seriousness of the conduct was in the high range. In these proceedings, it is submitted that the relevant conduct, although careless and/or reckless, is in the low range. Further, in these proceedings, the relevant conduct occurred against a background of the contemnor suffering from a psychological illness(es).
The difficulty with this submission, framed in terms of a comparative analysis of this kind, is that each case of contempt must be decided on its own facts and circumstances, albeit guided by relevant principle: see, for example, Battye (at [52]).
Further, the utilisation of Battye as a yardstick in the consideration of the application for a s 10 order in this matter (which, after all involves the exercise of a discretion) is somewhat problematic.
It is true that Battye involved conduct which was deliberate and for personal gain, elements not found in this matter (although her Honour described Mr Battye's conduct as a serious lapse of judgment). In this matter, the contempt derived from reckless conduct which in all likelihood would have resulted in the actions taken by Mr Anderson and not a deliberate action to advise Mr Anderson to behave in that way.
However, the contemnor does not suggest that, absent the elements of deliberation and personal gain a s 10 order would have been made in Battye. In fact, the contemnor described the contempt in Battye as in the "high range" (although her Honour does not make that finding).
In substance, Battye concerned a contempt for which the sanction of imprisonment represented a real possibility. Shortly after the passage relied upon by the contemnor, her Honour discussed the true gravity of the contempt and relevant sanctions forming the view that, absent the transfer of shares to their rightful owner, she would have punished the contempt in that case by imprisonment (see at [53]).
When understood in this context, her Honour's reasoning in Battye as to s 10 really only arises as an incident of the application made in that case, which her Honour dismissed as being entirely inappropriate. Further, it does not follow as a matter of logic that because her Honour found it inappropriate to exercise a discretion in Battye, because of the existence of deliberate conduct for personal gain, that the absence of each feature in a particular case of contempt must result in an exercise of discretion under that provision
In any event, there are other points of distinction in this matter from Battye which reflect upon the inappropriateness of the making of a s 10 order with a good behaviour bond. The contempt in this matter arose directly in consequence of the contemnor acting in his capacity as a solicitor. In Battye, the contemnor was a solicitor of some standing but was not actively engaged in the capacity in the contempt. This is not to suggest that her Honour did not have regard to Mr Battye's role as a solicitor but she recognised the distinction (at [15]). Further, the actual consequence of the contempt in this matter is quite serious given Mr Anderson's attendance at the property. This consequence was in addition to the time, trouble and expense experienced by Provident which was akin to that encountered by Mr Lin in Battye.
Whilst it may be accepted that Mr Coren has a strong subjective case (and mitigating factors), has entered a plea of guilty (which affords a significant discount on penalty) and the prospect that a conviction may affect Mr Coren's employment at the age 47 years (although very little material was provided to demonstrate the likelihood of such an eventuality), I do not consider the objective seriousness of the contempt and the need for general deterrence and denunciation of the contemnor (see, in particular, [121] above) permit the Court to properly exercise the discretion granted by s 10 of the Sentencing Act and, in particular, to make, as sought by Mr Coren, an order under s 10(1)(b) (and see s 10(2)) for a good behaviour bond without conviction. (For completion, whilst a s 9 bond was not sought by Mr Coren, I do not consider it appropriate for similar reasons).
Having regard to the entirety of the matters discussed in this judgment (including those mentioned in the next paragraph thereof) and, in particular, the proper balancing of objective factors and subjective factors, together with a need for general deterrence and denunciation, I conclude that the contemnor should be convicted of contempt and that it is appropriate in all of the circumstances that Mr Coren be required to perform community service work with an order imposed to that effect.
There are some additional particular factors which have been taken into account in coming to a decision to make a community service order as follows: 1. A fine would be less desirable, given the contemnor's impecuniosity and cost orders made and to be made. 2. The contemnor's suitability for such an order pursuant to s 86(1) of the Sentencing Act as discussed in the pre-sentence report. The contemnor has signed an undertaking as required by s 86(5) of the Sentencing Act. 3. Other penalties are excluded because no term of imprisonment was thought appropriate. 4. The low risk of further offending. 5. The consequence of any failure to comply with the Court's order. 6. The plea of guilty and discount afforded for the utilitarian value of that plea.

[29]

ORDERS

For the aforementioned reasons, I make the following declarations, orders and directions: 1. The Court declares Mr Coren is guilty of contempt of the Supreme Court of New South Wales in that, on or about 10 May 2013, he engaged in conduct that had a tendency to frustrate orders of the Supreme Court made on 9 June 2011 for possession of a property, by providing his client, Ian Anderson, with a letter or draft to the effect that the orders will be deemed never to have been entered into, from which his client concluded that he could disregard the orders and retake possession of the property. 2. Mr Coren is convicted of the contempt so declared. 3. Mr Coren is sentenced to 150 hours of community service. 4. Mr Coren is to report to Newcastle Community Corrections Office at Level 2, 7-9 Kelton Street, Cardiff NSW 2285 within 48 hours between the hours of 9.30 am and 4.30 pm. 5. Under s 93 of the Crimes (Sentencing Procedure) Act 1999 written notice of these orders is to be given to Mr Coren and to the Commissioner of Corrective Services, in the terms here specified. 6. Mr Coren shall pay the Prothonotary's costs of the proceedings in the sum of $40,000.
Section 92 of the Sentencing Act, also requires that all reasonable steps be taken to explain to Mr Coren, in language that he can readily understand, both his obligations under the community service order I have made, and the consequences that may follow if he fails to comply with them.
Mr Coren you are obliged within 48 hours to report to the Newcastle Community Corrections Office at Level 2, 7-9 Kelton Street, Cardiff and thereafter to do all that is required of you to perform the 150 hours of community service to which you have been sentenced. If you refuse to sign any necessary undertaking, or to carry out the hours of community service to which you have been sentenced, the Court's orders may be revoked and you may then be dealt with further by the Court for your contempt, including by the imposition of a term of imprisonment.

The Prothonotary of the Supreme Court of New South Wales v Coren

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