DEPARTMENT OF FAIR TRADING v. O'KEEFE [2002] NSWSC 398

New South Wales Supreme Court

CITATION : DEPARTMENT OF FAIR TRADING v. O'KEEFE [2002] NSWSC 398 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC No. 12318 of 2001 HEARING DATE(S) : 12/04/2002; 03/05/2002 JUDGMENT DATE : 3 May 2002

PARTIES : DEPARTMENT OF FAIR TRADING v. O'KEEFE, Timothy Aaron JUDGMENT OF : Greg James J at 1

COUNSEL : Plaintiff: P. Griffen Offender: C. Loukas SOLICITORS : Plaintiff: D.J. Catt, Solicitor for the Director-General Offender: Legal Aid Commission CATCHWORDS : Criminal law - contempt - sentence - special considerations applying to plea of guilty for contempt - appropriateness of imprisonment - deterrent - upholding process of justice. Fair Trading Act LEGISLATION CITED : Credit (Finance) Act 1994 Crimes (Sentencing Procedure) Act 1999 Cameron [2002] HCA 6 CASES CITED : Thompson (2000) 49 NSWLR 383 Sharma [2002] NSWCCA 142 DECISION : See paras. 46-53

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GREG JAMES, J.

FRIDAY 3 MAY 2002

No. 12318 of 2001

DIRECTOR-GENERAL OF THE DEPARTMENT OF FAIR TRADING v. TIMOTHY AARON O'KEEFE

JUDGMENT

1 HIS HONOUR: In these proceedings the offender has pleaded guilty to a charge of contempt. That charge of contempt was made for breach of an injunction obtained by the Director-General of the Department of Fair Trading restraining the offender from carrying on certain unlawful financial broking activities. 2 Because of those activities, numerous members of the community had lost very substantial sums or had them put at risk. The total amount of what had been put at risk or lost was quite high. The submissions of the Director and the summary provided from the affidavits filed in support of the application for the injunction disclose numerous members of the community had been so affected, having been lured into providing monies as deposits for further finance which finance was not forth coming and the deposits disappeared. 3 The statement of charge in relation to the charge of contempt referred to the offender's disobedience of the orders made by the court on 27 July 2001, in that, after the offender was on notice of the injunction restraining him from those activities during the period between 7 August 2001 and 12 November 2001 he engaged in the promotion, advertising, marketing and supply of financial services including finance broking; he entered into contracts for the supply of financial services in contravention of that order and engaged in conduct, which it was charged constituted a breach of s.42 of the Fair Trading Act in contravention also of the order. 4 It was further charged that he had by himself and others engaged in conduct constituting a breach of s.53 of that Act in contravention of the order and had engaged in the carrying on of business of a financial broker also in contravention of the order. 5 It was charged that he had breached s.9 of the Credit (Finance) Act 1994 in contravention of paragraph seven of the order of court; he had failed, in contravention of paragraph eight of the order to repay to the Department of Fair Trading on behalf of the consumers, the monies of which they had been deprived which are referred to in the letter, Exhibit B and the schedule referred to in the statement of charge. 6 The offender was apprehended and has been in custody since 18 January. Upon the matter being called on he has pleaded guilty to the charges. At no time has there been raised any opposition to any of the matters of fact referred to in the charge. It is accepted by counsel on behalf of the Department of Fair Trading that the sentence should date from 18 January and that I should have regard to the offender's plea as an early plea and as I am required to do insofar as s.22 of the Crimes (Sentencing Procedure) Act 1999 is applicable. 7 And further I am to have regard to that matter to which I will come shortly expressed to the probation and parole services officer and referred to in the report of that officer which is Exhibit E, concerning the offender's regret for the actions that have placed him before the court. I note that on the content of his expression of regret at his inability to repay the monies and his attitude to contravening the order the report said:- "He is just being stubborn and not taking the court's decision seriously." 8 But also that:- "He hopes he can put this mistake behind him and get on with his future and hopefully go into some kind of business to repay his victims of the Department of Fair Trading." 9 This latter statement is some evidence of some degree of contrition which should be taken into account on sentence, particularly in the case of a sentence for contempt of court, since the offence of contempt of court places particular emphasise 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. 10 In addition, it is accepted in argument by both counsel for the offender and for the Department that I should have regard to the principles referred to by the High Court of Australia in Cameron v. Queen [2002] HCA 6 which it is accepted for the same reasons as one would have special regard for contrition, should be particularly taken into account on a charge of contempt, that is where, as here, an offender's plea shows a personal willingness to facilitate the processes of justice. 11 I am therefore required to pass a sentence reflecting the objective seriousness of the offender's crime as mitigated be application of the principle enunciated by the High Court in Cameron (supra) since in this case the plea of the offender has, it is accepted by counsel for the Department, operated to facilitate the processes of justice. It is further submitted by Ms. Loukas on the offender's behalf that he should receive also the utilitarian value of the plea in accordance with the principle in Regina v. Thompson (2000) 49 NSWLR 383 which provides for an objective basis for a discount on sentence. It has been held in Regina v. Sharma [2002] NSWCCA 142, that the principle in Thompson (supra) continues to have operation in New South Wales over and above the applicability of the subjective factor to which the High Court made reference in Cameron (supra). 12 In this case, given the submissions that have been put on behalf of the department and the circumstances of the offender's confinement since 18 January this year until today, it is not going to be necessary for me to consider just how much weight needs to be placed on the different components that might go in to the synthesis to make up the final product of the sentence. I need not resolve the precise nature and extent of the relevant discount and the relative applicability of Cameron (supra) and Sharma (supra) to a sentence for contempt. Having regard to the course I have decided I should take, it will not be necessary for me to evaluate numerically or by some staged approach, the different considerations appropriate to the sentence. 13 But in coming to the view I have, it must not be considered that the objective circumstances of the offence are under rated. Contempt of court by continuing with activities from which a person has been restrained which deprive members of the community of substantial sums of money, revealed by the evidence to be in the order of $100,000 to $120,000, is very serious criminality and goes to undermine the processes of justice. As has been submitted by counsel for the Department of Fair Trading a substantial gaol sentence is required. 14 I have been provided with a deal of material to show the circumstances and attitude of the offender which caused him to commit the offences. That material includes his prior record which shows minor criminality on his part as a child, although that criminality did reach the serious peak of offences of malicious damage by fire and break, enter and steal for which he received community service orders. He has on his record other offences of stealing and break, enter and steal for which he was fined and one offence of shoplifting for which he received probation. 15 In addition, he has had on 27 October 2000 the offence of break, enter and steal for which he had been placed on a recognizance to be of good behaviour for two years so that at the time of the commission of these offences he was already bound by an order of the court to be of good behaviour. Thus, in his case, the criminality includes a further disregard for the processes of justice. 16 He has not repaid the monies, in other words, has not complied with the court's order. Nonetheless, his explanation of that is one which I am not minded to reject, that is, he does not at present have the monies and that accords with the circumstances the Department has referred to, where in his finance broking activities, other persons appeared to derive substantial benefits from the monies that were obtained. However, I have regard to what on his part I accept is a worthy intent held by him at the moment which perhaps will be persevering that should he be able to carry on profitable business activities he expects to compensate the victims of his earlier schemes for what they have put in. 17 Having said all that, I recognise that I am not sentencing the offender for his participation in those schemes or for embarking on any fraudulent operation or persevering in any fraudulent operation; he is not charged before me with those matters. He has not pleaded before me to those matters, he has pleaded only to the offences that I have set out as charged and he is to be sentenced for contempt of court, not fraud. 18 The circumstances in detail of the activities, the history of the grant of injunction and the breach are to be found set out in Exhibit F and it is not necessary for me for the purposes of this sentence to repeat those matters in the detail there set out. 19 As to his personal circumstances, a reference filed on the offender's behalf by his father emphasised that he had recognised the offender at about the age of 12 as being an out-spoken and independent person who apparently had to grow up early but gets led astray into hot water. 20 Barbara Suitor, a welfare worker has furnished a reference. She has known the offender since mid-1996 when he was 16 years old. She had known him until some time near his 18th birthday. During his relocation back to Taree at the beginning of 2001, she has maintained contact with him. He has spent a large part of 1996 and 1997 in contact with a local youth service; she was his case worker, she knew of his background. 21 It is sufficient to say that she provides evidence of a dysfunctional family in which the offender, from his youth, was the subject of a considerable degree of violence and in his childhood forced to grow up very quickly, as his father said, in the context of domestic violence and a separated family. He developed certain physical conditions and in particular a reaction by way of allergy to certain kinds of food which created behaviour of an aggressive, hallucinatory and, occasionally, psychotic nature. 22 His behaviour from the age of 12 as noted in his criminal record is not surprising in that context, he being subjected to the challenging home environment in which he found himself. He has been able to find and maintain regular employment albeit that he has shifted from time to time from one employment to another. This picture underlies the criminal record to which I have referred. 23 When in Queensland, according to Ms. Suitor, he was the subject of an attack which has operated somewhat understandably upon his mind. His life following that attack, so it was said by Ms. Suitor, commenced to change and the consequence was that he appeared to allow his then stable housing, employment and domestic relationship to break down and he developed less of a regard for the attitudes of others. 24 His mother, in a reference provided for the court says much that goes to confirm the observations of Ms. Suitor. She says this:- "He has always wanted to succeed in life and made sure their children were cared for. He has been trying to provide money, support and ongoing happiness to us all even if it is meant some things are not being fully understood by some. His determination to make sure his family is looked after is something that has caused some problems for my son but I know now he has more than enough time to think about and realise he may have to do things another way." 25 She refers to his obsession with wanting to do the right thing for his family by way of acquisition of wealth for that purpose. 26 Mary Thompson confirms a deal of what is said in the mother's reference. 27 In a report by Anita Duffy of Duffy Barrier Robilliard Psychologists dated 11 April 2002 is set out the offender's unfortunate prior history to which I have already referred. It's not necessary that I set out that in the detail there recorded. 28 There is reference made to the stable domestic relationship to which I have referred, to the two sons born to the offender in that relationship and the separation, at a time which is consistent with following the attack. 29 At that stage the offender apparently returned to Taree. It was there he started, with a partner, the business that resulted in the Department seeking the injunctions. 30 He has had problems not only with the law but also with his mental condition having been admitted to a psychiatric ward when he was 14 at Kempsey. 31 In addition, he has been of recent times and immediately prior to the commission of these offences, depressed to the extent of attempting to take his own life whilst living at his brother's place over the Christmas period prior to the commission of the offences, this apparently in consequence in particular of the break down of his domestic relationship. Not surprisingly his youth has been marked by the excessive consumption of alcohol to the point where he accepts he was drinking to forget about his life. I need not refer in detail either to the history given by the psychologist of the various influences in the domestic environments. 32 The assessment provided by the psychiatrist concludes that he had a history of being involved in domestic, dysfunctional relationships in his family, that he lived the life of a rather homeless and disaffected person. He has wished to impress his family and his mother with his success, he has strongly paranoid features in his personality by way of suspiciousness and defensiveness, which have developed in response to the abuse and emotional neglect he has suffered. The break down of the relationship with his girlfriend and her taking the two children has left him in a state of severe depression and alcoholism and he turned from that, bearing in mind his rigid inflexible modes of thinking, to what seemed to be almost obsessive business activities in order to attempt to display his prowess. 33 At the time he spoke to the psychiatrist he apparently did not believe that he had done anything wrong but as I have said, at the time he spoke to the probation and parole service officer he appears to have recognised that he has. 34 That officer's report which, in terse style, seems to support the reflections of Ms. Duffy includes reference to the break down of the domestic relationship the growing up in a dysfunctional family and the alcoholism and the degree of gambling. The report offers consideration of a number of sentencing alternatives, it confirms the offender has limited resources and would have difficulty paying a fine. That report notes the offender is suitable for a community service order or periodic detention and that he has made the offer that for the purposes of undergoing such sanction he'll be prepared to reside in Sydney with his uncle. I do not regard such sanctions as appropriate in the context of this matter. 35 Notwithstanding that he has admitted he drank and gambled excessively, the writer considers these activities did not contribute to the offence of contempt of court. It is however remarked by the writer that Mr. O'Keefe may benefit from participation in programmes focused on addressing his alcohol and gambling issues. 36 When I have regard to the form of punishment that appears to me the most fitting, I note these remarks in the context that it would be appropriate if, whilst he is on parole, a supervising officer could give attention to the prospect that he should participate in such programmes. 37 It appears to me that the submission made by counsel for the Department that an appropriate sentence would have to have regard to those matters, which in a contempt sentence loom large is made out. It is necessary for the offender to recognise those considerations, that is, that his conduct has been seriously criminal and to express his willingness that it not be further perpetuated and that he is to be punished for breaches of the law which have the tendency to undermine the processes of justice. Those considerations could not have satisfactorily been answered in this case by a sentence of much less than 12 months imprisonment. 38 But it was submitted on behalf of the Department that that sentence of twelve months would have to be discounted having regard to the various factors to which I have referred and that on an appropriate synthesis a sentence of six months imprisonment with an appropriate non-parole period should be imposed. There was no demurrer from Ms. Loukas to that proposal. 39 There is some doubt expressed in some circles that the Crimes (Sentencing Procedure) Act 1999 would apply to sentences for contempt. Assuming it does, it would be appropriate to set a non-parole period, and having regard to the circumstances it would not be appropriate to increase the sentence so that a non-parole period would be imposed in extending beyond the term already served. 40 Section 46 of the Crimes (Sentencing Procedure) Act provides that:- "A court may not set a non-parole period or a sentence of imprisonment if the term of the sentence is six months or less." 41 I have regard to the submissions made by counsel concerning the appropriate term of the sentence. I am of the view that to reduce by reason of the discounts the sentence by the 50% that has been suggested would be to exceed what is appropriate in the context of this case. I do consider that an appropriate starting point is a sentence of 12 months. 42 In my view, the appropriate sentence, having regard to the various factors in the synthesis including in particular the objective seriousness of the offence and the particular subjective circumstances of the offender which are set out in the report of Anita Duffy which I regard as special circumstances and which in particular include his psychological makeup, his age, his dysfunctional childhood and his attempts to carry on an business but in a way which it is said is unlawful, and having regard to the fact that I am sentencing for contempt and not for the crime of fraud, a sentence of nine months imprisonment with a non-parole period to expire today, should be imposed. That will leave the offender under supervision for a little over five months.