Principal Registrar of the Supreme Court of New South Wales v Joseph Assi [2005] NSWSC 183

New South Wales Supreme Court

CITATION : Principal Registrar of the Supreme Court of New South Wales v Joseph Assi [2005] NSWSC 183

HEARING DATE(S) : 04/03/05

JUDGMENT DATE : 4 March 2005

JUDGMENT OF : Brownie AJ

DECISION : On each of the eight charges upon which the defendant had been found guilty, I impose a sentence of twelve months imprisonment commencing on 17 November 2009 and ending on 16 November 2010. In respect of each offence, I impose a non-parole period of three months commencing 17 November 2009 and ending 16 February 2010. Each of those sentences and non-parole periods is to be concurrent with the other seven. I grant liberty to either party to apply as to costs.

CATCHWORDS : Sentencing - Contempt

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 21A

CASES CITED : Drummoyne Municipal COuncil v Lewis [1974] 1 NSWLR 655

Principal Registrar of the Supreme Court of New South Wales (Plaintiff) PARTIES : Joseph Assi (Defendant

FILE NUMBER(S) : SC 10611/04

Mr R D Cogswell SC with Mr A P L Naylor (Plaintiff) COUNSEL : Mr D Marr - (Defendant)

I V Knight (Crown Solicitor) (Plaintiff) SOLICITORS : Watsons Solicitors (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BROWNIE AJ

Friday 4 March 2005

010611/04 PRINCIPAL REGISTRAR OF THE SUPREME COURT OF NEW SOUTH WALES v JOSEPH ASSI

JUDGMENT 1 HIS HONOUR: The defendant appears for sentence, he having been found guilty on 22 November 2004 on eight charges of contempt of court. In the meantime, he pleaded guilty in the District Court to two charges of fraudulent misappropriation and two charges of obtaining a valuable thing by deception. He asked that another seven offences of the same general description be taken into account. 2 On 17 February 2005, Judge Latham sentenced him to imprisonment for a period totalling seven and a half years and fixed an aggregate non-parole period of four years and nine months. There is a certain amount of overlap between the offences that constituted the eight charges of contempt of court and the matters for which Judge Latham sentenced him. In short, these existing sentences relate to the offences of receiving the money in question from Mr Zaher, Mr and Mrs Affram and Mr Napoli as well as other monies not related to the charges in respect of which I now have to sentence the defendant. In addition, her Honour took into account and made a restitution order in respect of certain money which the defendant obtained from Ms Hu. 3 The plaintiff submits that the sentences imposed by the District Court did not take into account the separate matter of the defendant's contempts of court. The defendant submits that Judge Latham did take the contempts of court into account. In her Honour's remarks on sentence recorded at page 12 of the transcript she said: "The offender held himself out repeatedly as a solicitor knowing full well he was expressly prohibited from doing so by an order of the Supreme Court. In that regard he has demonstrated an ongoing attitude of disobedience to the law and abused the trust placed in him by his victims." 4 The essence of the defendant's submission was that Judge Latham treated this case as an aggravating feature within the meaning of s21A (1) of the Crimes (Sentencing Procedure) Act 1999. Clearly enough within the meaning of s21A (2)(k), her Honour did take into account and treated as an aggravating factor, the abuse of position of trust. I am not confident however, that her Honour did treat the breach of the order made by this Court, that is the contempt of court or series of contempts of court, as aggravating features and, as I read the whole of her Honour's remarks on sentence, at the point that I have quoted, she was dealing with the fact the defendant repeatedly held himself out as a solicitor while not entitled to do so and whilst knowingly not entitled to do so, but reading everything of what her Honour said, she treated aggravating features generally at a later point in her remarks on sentence and she referred later again to the fact he was to be sentenced by this Court. On the other hand at almost the same point, her Honour did refer to the abuse of trust. 5 I think it is right to take into account the fact that her Honour did weigh in the balance the circumstance that the defendant acted in breach of the order made by Simpson J of this Court and to guard against the reality of the perception that he would be punished twice for the one group of offences. 6 The contempts of court that the defendant committed were serious contempts. They are spread over a period of some two years. Counting the Afframs as one person, they involved four separate people. He also deceived other people identified in the reasons for judgment I gave on 22 November last. What he did seem to me to constitute the flouting of the order of this Court in a way which calls into operation principles of general deterrence as well as individual deterrence and the need for a denunciation of his conduct. 7 I proceed on the basis that he is addicted to gambling and that it is appropriate to treat this form of addiction as a disease. That explains but does not justify or excuse his conduct, by which I mean his contempts of court. It is not to be forgotten that he is an obviously intelligent and very well educated man who for some time practised as a solicitor. 8 I do not think that he has shown any real contrition as far as the contempts of court are concerned. He pleaded not guilty and he gave evidence which in a practical sense defied the reality of the objective facts. There is some element of hardship involved, particularly concerning his partner and his child. Nevertheless, as has often been said, that is the inevitable consequence of his unlawful conduct. It attracts sympathy, indeed a great deal of sympathy, but I am afraid that is all that it can appropriately attract in the circumstances of this case. 9 I do not take into account anything at all concerning the charges which I understand are pending against him in the Victoria County Court. I really know nothing significant about them. 10 The plaintiff submitted and I accept that it is not appropriate to take into account the fact that any of the contempts of court occurred whilst he was on bail or on parole. 11 There is an additional or cumulative set of factors involved which make it difficult to come to a confident view as to precisely what sentence should be imposed and what non-parole period. There is a real degree of overlap between the offences for which he has already been sentenced in the District Court and the facts constituting the contempts of court for which I now have to sentence him. 12 Subject to what counsel may submit as to the technicalities of it, it seems to me the appropriate course to follow is to fix an additional cumulative sentence or cumulative sentences of twelve months in the aggregate and an additional or cumulative non-parole period of three months. Again subject to what counsel may have to say as to technicalities, that means there should be eight concurrent sentences, one for each of the eight charges of contempt of court, each for a period of twelve months commencing 17 November 2009 and ending on 16 November 2010 and a non-parole period of three months commencing on 17 November 2009 and ending 16 February 2010. The complication of the existing sentences, the need to be careful to see there is no real or perceived sense of the defendant being punished twice for the one set of offences, seem to me to make this case sufficiently special and to take it well out of the ordinary range of cases concerning sentencing and the proportion between a head sentence and a non-parole period. 13 I have been asked to grant liberty to either party to apply as to costs and I grant that liberty. 14 I need to say something more than I said last year about the provisions of Part 42 of the Supreme Court Rules. The contempts of court relate to the failure by the defendant to comply with an order of the court. The formal minutes of that order did not contain the endorsements required by Part 42, rule 8. Part 42 deals generally with the need to serve a properly endorsed minute a judgment or order, before the person bound might be punished for contempt. Subrule (3) sets out what that endorsement must say, and the minute served on the defendant did not contain that endorsement. Subrules (6) and (7) provide that the court may dispense with service under the rule. 15 In Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655 at 658, Justice Holland said: "In my opinion, the power provided in 8 (6) ought to be exercised sparingly. To commit a person to prison for disobedience of an order of the Court is a most serious matter and when the rules expressly require in mandatory terms personal service of the order in an official form showing on its face that it emanates from and is authenticated by the seal of the Court with an express statement endorsed thereon that disobedience is liable to lead to "imprisonment", it seems to me that, unless there are special circumstances justifying non-compliance with the requirements of the rules, they ought not to be disturbed by the Court." 16 The rules have been amended on many occasions since 1974 but not in such a way that anything his Honour said is inappropriate today. In the circumstances of this case, it seems to me one ought to say if ever the discretions provided for in rule 8 subrules (6) and (7) are to be exercised, then this is the case. The defendant did know of the order because the minute of the order was served upon him. He had earlier consented to an interlocutory injunction which it seems was discharged only when the order made by Justice Simpson for the breach of which is now to be punished was made. He was a solicitor. He must be taken to have known what he was doing. His case was that he attempted to comply with the order, and that he did so. 17 On each of the eight charges upon which the defendant had been found guilty, I impose a sentence of twelve months imprisonment commencing on 17 November 2009 and ending on 16 November 2010. In respect of each offence, I impose a non-parole period of three months commencing 17 November 2009 and ending 16 February 2010. Each of those sentences and non-parole periods is to be concurrent with the other seven. I grant liberty to either party to apply as to costs. **********