Land and Environment Court New South Wales Medium Neutral Citation: Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 3) [2012] NSWLEC 27 Hearing dates: 12.11.08 11.03.09 16.03.09 18.05.09 19.05.09 27.05.09 21.07.09 29.07.09 21.10.09 19.11.09 16.12.09 08.02.10 15.02.10 15.03.10 14.05.10 28.07.10 02.08.10 11.08.10 30.08.10 20.10.10 11.11.10 21.02.11 08.03.11 29.03.11 17.05.11 01.06.11 29.06.11 22.02.12 Decision date: 23 February 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. That Daniel Bek is convicted of the charge of contempt of court particularized in the Statement of Charge filed in the court, with the Notice of Motion dated and filed on 30 October 2008. 2. That Daniel Bek is sentenced to a term of imprisonment for one year and nine months. 3. That the execution of the sentence imposed by Order 2 of these orders be suspended for the term of that sentence in accordance with Section 12 of the Crimes (Sentencing Procedure) Act 1999, on the following conditions: (a) that Daniel Bek will appear before the court if called to do so at any time (b) that Daniel Bek be of good behaviour (c) that Daniel Bek will advise the Registrar of the Court of any change of residential address 4. That Daniel Bek is fined the sum of thirty thousand dollars ($30,000). 5. That Daniel Bek is ordered to pay legal costs and the prosecuting Council's investigation expenses as follows: (a) the costs of the substantive proceedings up to and including the date of the first judgment, delivered on 16 September 2008, on a party - party basis, as agreed or assessed according to law (b) all costs and investigation expenses incurred by the prosecuting Council from 16 September 2008 up to and including the date of the third judgment, delivered on 23 February 2012, on an indemnity basis, as agreed or assessed according to law, except that each party is to pay its own costs incurred between 29 June 2011 and 8 November 2011, both inclusive in respect of the question of Daniel Bek's fitness to plead and/or stand his trial on the charge of contempt. 6. That the orders and undertakings made on 29 June 2011 and varied on 25 August 2011 in respect of arrangements akin to bail, and including reporting to Campsie Police Station, are vacated, with the cash security lodged by Salam Bek to be repaid to her. 7. That all exhibits be returned except Exhibits B3, C11, C12 and C13 Catchwords: CONTEMPT OF COURT: Failure to obey orders, False contention that the offending business had been sold, eventual plea of guilty, inquiry into fitness to plead, agreed statement of facts including admissions, sentencing options, suspension of sentence of imprisonment, costs, indemnity costs. Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Andary v Council of the City of Sydney [2010] NSWLEC 1307 Australian Securities and Investments Commission (ASIC) v Sigalla (No.4) [2011] NSWSC 62 Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79 Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek [2008] NSWLEC 262 Environment Protection Authority v Pannowitz (No. 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 Jeray v Blue Mountains City Council [2011] NSWLEC 28 Liverpool City Council v Palerma Pty Ltd and Parilo (No. 2) [2009] NSWLEC 45 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Mosman Council v Kelly (No 6) [2010] NSWLEC 20 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 R v Rahme (1989) 43 A Crim R 81 Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 2) [2001] NSWLEC 196 Wood v Staunton ( No 5 ) (1996) 86 A Crim R 183 Category: Sentence Parties: Council of the City of Sydney (Applicant) Sydney Tool Supplies Pty Ltd (First Respondent) 'Danny' Bek (Second Respondent) Representation: Mr M Wright, Barrister (Applicant) Mr C J Haseldine (Second Respondent) Sydney City Council (Applicant) Milford Haseldine & Williams (Second Respondent) File Number(s): 40627 of 2008 Judgment Introduction 1This judgment concerns charges of contempt of court filed on 30 October 2008 against both respondents in these class 4 proceedings. 2The charges concern orders made by the court following my judgment of 16 September 2008 - Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek [2008] NSWLEC 262. Those orders are set out below, in their final form (see [22]), but they essentially prohibit both defendants from using, advertising, leasing or licensing the subject service station premises for the purposes of a carwash, without development consent, and require the removal of some signage and other unauthorised building works. 3On 12 November 2008, both respondents entered pleas of Not Guilty to the charges of contempt, and the hearing was appointed to commenced on Wednesday 11 March 2009. However, when the proceedings came on for a defended hearing on 11 March 2009, the defendants entered pleas of guilty , through their then solicitor, Mr Elias Tabchouri, of Macquarie Lawyers, Burwood. 4Pleas of guilty having been entered on behalf of both of them, the court must determine the penalty (if any) to be imposed on either or both of them. However, searches of ASIC show that the defendant company was deregistered and/or dissolved on 3 April 2009. It appears to have had debts at that time and the Council has not actively pursued it. 5As the second respondent/defendant Daniel Bek had been the only director, the secretary and the guiding mind of that company, and as it was he who actually operated the offending carwash, the prosecution for contempt has continued against him in his own right. 6The prosecutor has asked the court to impose a sentence of imprisonment on Mr Bek, as well as an order for indemnity costs, and possibly a fine. 7Mr Tabchouri represented both Bek and the company from the second day of the hearing of the substantive proceedings (28 August 2008) until early on the first day of the sentencing hearing in the contempt proceedings (18 May 2009). (His notices of appearance, and ceasing to act, as later filed, mentioned only the respondent company, but he had certainly also represented Mr Bek in the matter). 8After Mr Tabchouri withdrew from the matter on 18 May 2009, Mr Bek failed to attend on that day, and the prosecutor adduced a large amount of its evidence on sentence in his absence. 9Mr Bek appeared in person during the brief resumption of the hearing on 19 May 2009, and the matter was adjourned to enable him to secure fresh representation. Mr Peter McEwen SC agreed to appear for him 21-22 July 2009 under the Bar Association's pro bono programme, but withdrew from the case late on 17 July 2009. Mr Bek again appeared in person on 21 July 2009, and I adjourned the hearing for further mention on 29 July 2009. 10On and from 29 July 2009, a senior solicitor, Mr Christopher John Haseldine, of Bankstown, appeared for Mr Bek, under a grant of legal aid. He temporarily withdrew from the case on or about 27 July 2010, but returned after Mr Bek was arrested on my warrant on 29 June 2011. He did not represent the defendant company at any stage 11There has been no contest regarding service of all relevant documents, including the Council's affidavit evidence, on both defendants, or, later, on Mr Bek alone, or on the solicitors appointed by him/them from time to time, as the case may be. The lawyers on both sides are to be commended on their joint management of this difficult case. 12The question of Bek's fitness to plead or stand trial was first raised on 21 October 2009, and was not resolved until 10 November 2011 (see Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 2) [2011] NSWLEC 196). 13The parties have now agreed upon a Statement of Facts for the purposes of this sentencing hearing ('ASF' - Exhibit C12 ). In that statement Bek admits that he (and his company while active) continued to use the old service station site as a carwash and café from 16 September 2008 until October 2010 , and that such use continued contrary to the court's orders until approximately July 2011 (ASF par 12). The history of the substantive proceedings 14These class 4 proceedings were commenced by Council on 26 June 2008, and came before the court for hearing on 27 and 28 August 2008. Some related class 1 proceedings (matter 10708 of 2008) were then also on foot, in respect of Council's refusal of development application ('DA') No D/2008/31. Both concerned the operation of a carwash and café on an old service station site at 536A King Street, Newtown (" the site "). 15In view of the ASF, it is not necessary to repeat what I said in my principal judgment on 16 September 2008. As recorded in the ASF (at par 6): The company leased the premises under an unregistered lease from 1 October, 2007. As at that time, the Respondents by the Second Respondent, their servants, agents or contractors commenced operation of a carwash and a café and undertook a number of unauthorised works including: (a) The extension of the existing building on the premises including its fitout as a café; (b) The erection of metal pylons and shadecloth; (c) The erection of overhead gantries for vacuum cleaners and water hoses; (d) The erection of timber decking around the café on the premises; (e) The erection of a corrugated iron fence; (f) The installation of signage and advertising structures; (g) The installation of two carwash bays. 16The Council succeeded in establishing that the carwash and café operations, and associated structures and advertising, did not enjoy consent, and the court was satisfied that the carwash and café uses were the primary, rather than acceptable ancillary, uses proven on the site. The respondents failed to convince the court to exercise its discretion in their favour. I also noted in the primary judgment (at [21]) that there had been " an unfortunate level of unpleasantness " created by Bek in the immediate neighbourhood of the site. 17Formal orders were made later that day in Chambers against the respondents in accordance with my judgment, and no appeal was lodged against my decision. The question of the costs of those proceedings was reserved at Council's request, and remains unresolved. 18On 23 October 2008, the then related class 1 matter (10708 of 2008) was discontinued by consent. As will be noted later in this judgment, further class 1 proceedings (10754 of 2009), relevant to the operation of the carwash/café on the subject site, were later instituted. 19As noted above, the present contempt charges were laid on 30 October 2008 . 20On 12 November 2008, the orders I had made in the substantive proceedings were amended by consent, simply to reflect the discontinuation of the original class 1 proceedings. Those amended orders, bearing that November date, were issued by the court on 11 December 2008. 21As already noted, the orders, as they have stood since then, essentially prohibit the respondents from using, advertising, leasing or licensing the subject premises for the purposes of a carwash, without development consent, and require the removal of advertising signage and other unauthorised building works. 22Omitting formal parts and orders regarding service, the orders at the heart of the contempt proceedings provide as follows: The Court makes the following declarations and orders: 1A declaration pursuant to s124 of the Environmental Planning & Assessment Act ("EPA Act") that the Respondents are unlawfully carrying out development, namely the use of 536A King Street, Newtown ( "the premises" ) for the purposes of a 'car wash' and a 'cafe' ("the said purposes"), without development consent having first been obtained. 2A declaration pursuant to s124 of the EPA Act that the Respondents have unlawfully carried out building works on the premises without first obtaining development consent therefore, namely: a)The extension of the existing building on the premises and its fit out as a café; b)The erection of metal pylons and shade cloth; c)The erection of overhead gantries for vacuum cleaner and water hoses; d)The erection of timber decking around the café on the premises; e)The erection of a corrugated iron fence; f)The installation of signage and advertising structures; g)The installation of two car wash bays . 3A declaration that the Respondents have unlawfully carried out building works on the premises contrary to any subsisting development consent. 4A declaration that the Respondents are unlawfully using the premises for the said purposes contrary to any subsisting development consent. 5A declaration pursuant to s676 of the Local Government Act 1993 (" the LG Act" ) that the Respondents have exposed or allowed to be exposed articles, namely advertising structures, on the public road in the vicinity of the premises without an approval as required by s68 of the LG Act. 6An Order restraining forthwith the Respondents, their servants and agents, from using or permitting the use of the premises for the said purposes or any of them until development consent for such use is granted pursuant to the EPA Act and such consent is operative. 7An Order restraining forthwith the Respondents, their servants, and agents: a.from advertising or holding out the Premises or any part of them as available for any of the said purposes; and b.from leasing or licensing the Premises or any part of them for any of the said purposes; without first obtaining a development consent specifically authorising those purposes. 8An Order pursuant to s124(2)(b) of the EPA Act that the Respondents forthwith remove all unauthorised building works at the premises namely: a.The extension of the existing building on the premises and its fit out as a café; b.The erection of metal pylons and shade cloth; c.The erection of overhead gantries for vacuum cleaners and water hoses; d.The erection of timber decking around the café on the premises; e.The erection of a corrugated iron fence; f.The installation of signage and advertising structures; g.The installation of two car wash bays. ... (Orders 9 and 10 vacated 12 November 2008) 11 An Order pursuant to s124(2)(c) of the EPA Act and s676 of the LG Act that the Respondents remove within 48 hours all signage advertising Sydney's Carwash Café from any public place within the meaning of the LG Act. 12 Costs reserved. 13 (as per order 5 of 12 November 2008) Liberty to restore on two days' notice. 23It would seem that Mr Bek simply did not accept that the court had quite properly ruled that his carwash business could not legally operate, as he configured it, namely with carwashing as more than some subsidiary or ancillary part of a normal service station operation on the site. Nor does he appear to have accepted that the Council and the court had serious responsibilities in that regard. He told Professor Woods (report 3 August 2011, p10) that he thought that the terms of his lease gave him the legal entitlement to continue operating, despite Council's " advice " that he cease, and the Probation & Parole Service, in its latest review of him ( Exhibit C13 ), noted that he " could not explain why his court matter has not yet been resolved ". 24In any event, despite his understandable dissatisfaction with the outcome of the proceedings, the offending gantry and decking were removed on 14 or 15 March 2009 (ASF par 8). This represents at least a minor effort to comply with some of the court's orders. 25However, the court notes the following now agreed facts: (7) The primary or dominant use of the premises since October 2007 until in or about July, 2011 has been as a carwash and café which was having significant adverse impacts on the amenity of the adjoining owners. ... (12) The Respondents continued to use the premises as a car wash and café from 16 September, 2008 until approximately October 2010 but the use continued contrary to the Court's orders until approximately July 2011. (13) The Respondents continued to advertise the carwash business from 16 September, 2008 until approximately October, 2010 by means of signage on the premises and on the footpath in King Street, Newtown, by leaving leaflets under the windscreen wipers of cars in the immediate vicinity and on shopper dockets at a local supermarket and the placing of "A", framed signs on the footpath out the front of the premises in King Street, Newtown. The advertising of the carwash by means of "A", framed signs in King Street, Newtown ceased upon the leasing of part of the premises to another tenant in or about March, 2011. (14) On or about 1 October, 2008 the Respondents by the Second Respondent, their servants or agents, commenced to use an advertising structure consisting of a powerful electric fan which directed airflow vertically up into an inflatable figure with the words "CAR WASH", written down the front (" the inflatable figure "). The inflatable figure has been placed on or adjacent to the footpath along King Street, Newtown in front of the premises each day unless raining. (15) On 24 September, 2008, Council officers Joseph Pignone and Phillip Motbey attended the park opposite the premises in order to investigate alleged breaches of the Court's Orders. At approximately 3:20pm, Mr Bek assaulted these officers. As a result, Mr Bek was charged with Common Assault and fined $300.00 with $73.00 Court costs in Newtown Local Court on 26 June, 2009. (16) The presence of the inflatable figure and small "A", framed signs on the footpath in King Street, Newtown had been obstructive to pedestrian traffic along King Street, Newtown and ceased to be present at the site on and from March, 2011 . The history of the contempt proceedings 26The charge was filed on 30 October 2008 . Between then and the defended contempt hearing listed for 11 March 2009, the Council had filed and served substantial evidence, but the defendants had filed none. Some of the unauthorised structures had been removed by that time, but carwashing had continued, partly inside the workshop area of the premises. 27On 11 March 2009 , as already noted, the defendants changed their plea to guilty . Mr Bek was late arriving at court on 11 March. Mr Tabchouri entered the pleas, and sought an adjournment of the hearing on penalty, so that he could have Mr Bek medically examined. He also agreed to my request on that occasion that Mr Bek submit to a pre-sentence assessment by the Probation and Parole Service ('PPS'). 28Mr Wright, counsel for the Council, pointed out that the carwash use was still continuing in breach of the court's orders. I adjourned the court briefly, and, when we resumed, Mr Tabchouri informed the court that phone calls had been made to ensure " that all conduct ceases immediately ... until these matters are finalised " (Tp5, LL9-12). 29It was clear to the court that Mr Tabchouri's purpose in engaging Dr Stephen Allnutt in the respondent Bek's case was to make good a point which he was advancing in mitigation , namely that Mr Bek has some cognitive difficulty in understanding what the court's orders actually required of him and of his company (of which he was the guiding mind). 30I granted the adjournment on the basis of a " total cessation of the operations that are the subject of the orders ". Case management was discussed, and continued, on the basis that the company was essentially Mr Bek himself. Appropriate orders and directions were made (Tpp13-14), including for a pre-sentence report. 31The hearing was listed to resume part-heard on 18 May 2009 , but liberty to restore was exercised by Council to bring the matter before the court again on Monday 16 March 2009 , as it had evidence that the offending carwash operations had continued beyond the hearing held on 11 March. 32Mr Tabchouri advised the court on 16 March 2009 , in the absence of Mr Bek, who claimed to be ill, that the business had been sold on about 13 March 2009 . The purchaser was later identified to the court as one Andrew Yani, and some of the allegedly relevant papers bear the date 11 March 2009 (see Exhibit C7 , but the only evidence presented on 16 March 2009 was of the registration of a business name). Directions to the defendants to file proof of any such sale by 27 March 2009 were never complied with . 33Mr Bek did not attend court at all on 16 March, when Council alleged that the carwash business was still operating - Mr Tabchouri assured the court Mr Bek had gone to a doctor to obtain a medical certificate to justify that day's absence. No such certificate ever reached the court. The pleas of guilty to a contempt enduring to the date of sale were maintained (T16.3.09, p3, LL29-30). The hearing proceeds on 18 May 2009 34When the matter was called on Monday 18 May 2009, the defendants were represented by Ms Nadia Messiha from Mr Tabchouri's firm. Mr Bek was not present. 35Ms Messiha did not advise the court that the defendant company had been deregistered, but she sought an adjournment of the hearing on the basis that Mr Bek was ill. The nature of his condition was not specified in the medical certificate she handed up to the court at the time, but he later told the court he often suffers from migraine. I informed her that an officer of the Legal Aid Commission had told an officer of the court's registry, on or about 1 May, that Mr Bek would be unable to attend court " due to anxiety attacks he suffers ". 36In due course Ms Messiha produced a second medical certificate obtained from Dr George Nema, of 1 Marlowe Street, Campsie ( Exhibit B1 ), which said Mr Bek had been receiving treatment since 13 May 2009 for " sever (sic) dizziness and nausea ", and would be under treatment until and including Tuesday 19 May 2009. She advised the court that the doctor was not available to give evidence. 37I pointed out to Ms Messiha Mr Bek's record of non-attendance, late attendance, and last-minute applications for adjournments (see T18.5.09, pp2-3). I noted that what had earlier been put to the court was that " Mr Bek's culpability for contempt was moderated by the fact that he didn't quite understand the orders and that there was a cognitive difficulty ...". (See also my comments at Tp13, LL22-44). Mr Wright asked if there had been any indication from Mr Bek in relation to maintaining his plea. If maintained, he wished to proceed to lead the evidence the Council relied upon. 38When her adjournment application was refused, Ms Messiha announced that her firm was withdrawing from the matter. She could not confirm that Mr Bek was on notice of that intended course, so I stood the matter down for another hour in order for her to (1) tell him her intentions, and (2) file a Notice of Ceasing to Act. At about the scheduled time for resumption, Ms Messiha filed at the Registry a Notice of Ceasing to Act, and shortly afterwards handed a copy up in open court. I informed her that the court would proceed to deal with the defendants in their absence, and asked that she pay her former clients the courtesy of so informing Mr Bek. (See Liverpool City Council v Palerma Pty Ltd and Parilo (No. 2) [2009] NSWLEC 45). She told the court that Mr Tabchouri had done so. Court staff reported that during the hearing later on 18 May both Mr Bek and Mr Tabchouri had made telephone inquiries as to how the proceedings were going. 39The prosecutor led its evidence until approximately 4.50pm on that day (18 May 2009). I will return in due course to review some of that factual evidence, but for present purposes I need to mention that among five witnesses who gave oral testimony on that day were (1) Mr Richard George Andary and (2) Mr Jaykar Upadhyay. Mr Andary is a director of the Andary Group of companies and Mr Upadhyay is the group's financial controller. One Andary group company, apparently Andary Property Investments Pty Ltd, owns the Newtown carwash site. 40At the close of that day's proceedings I ordered the prosecutor to make telephone contact with Mr Bek, and deliver a letter to him overnight, informing him (1) of the seriousness of his personal position in light of the case presented, and (2) that the court had declined to issue a warrant for his arrest, pending his being given one last opportunity to appear voluntarily, preferably with legal representation, when the hearing resumed at 9.30am on Tuesday 19 May 2009. 41It came to my notice for the first time overnight 18-19 May that the respondent company had been deregistered . (Subsequent evidence confirmed that the deregistration occurred on 3 April 2009. See also ASF par 28). 19 May - 29 July 2009 42The court notes with appreciation that Ms Messiha was helpful to Mr Singh in his attempts to contact her former client. Mr Bek told Mr Singh on the night of 18 May 2009 that he would not be coming to court on 19 May, but he turned up that morning just as the prosecutor was preparing short minutes of order setting out directions for the further disposition of the matter (see T19.05.09, p6, LL28-35). I addressed him at some length (see T pp6-8). The Council was still in its case, and arrangements were made for him to seek legal aid. He told the court (Tp15) that he had never heard of Dr Allnutt, but that he had seen the PPS. 43The matter came before the court again on 27 May 2009 . Mr Bek walked into the courtroom late (see Tp7, L29). He confirmed to the court that he had been served with all the Council's documents, that he had seen the PPS, and that he was pursuing his applications for legal aid, and/or for pro bono representation (through the Bar Association). The court urged him to maintain close contact with Alex Singh, the Council's in-house solicitor, concerning his position. 44The hearing was adjourned for further hearing on 21-22 July 2009 . 45When the matter was next listed on 21 July 2009 , Mr Bek appeared, accompanied by some family members (see Tp9, LL11-12). During the short hearing on that date he said (at Tp6, LL32-34): I'm not running the site. Why don't they just go and chase up Richard and Barry, the owner. I'm not running the site. I haven't been there for a very long time ... (my emphasis) 46I granted Bek an adjournment so that he could secure legal aid. 47When the matter was next listed, for mention on 29 July 2009 , Mr Haseldine first appeared for Mr Bek, under a grant of legal aid. Mr Haseldine told the court that Mr Bek's personal doctor had referred him to a psychiatrist, Dr Keshava, whom he would consult on 21 September 2009. Dr Allnutt's name was also mentioned again. 48The court is unaware as to whether or not Dr Keshava was consulted, but Mr Bek certainly saw Dr Allnutt on 8 October 2009 . Dr Allnutt apparently prepared a written report dated 13 October 2009. 49The hearing was listed to resume on 21-22 October 2009. Fitness Issues raised in October 2009 50When the matter was next relisted on 21 October 2009 , Mr Haseldine again represented Mr Bek. 51Andrew Yani was still put forward (according to Mr Wright) as the alleged operator of the service station, and Richard Andary, as landlord, personally (and not in the name of Andary Trust) had by then (on 13 October 2009) filed a class 1 appeal (10754 of 2009), with the written consent of Andrew Yani, effectively seeking permission for the carwash use. It was an appeal against Council's refusal on 29 May 2009 of Yani's DA (D/2009/403) for approval of a service station and internal carwash. Mr Wright also mentioned (Tp2) that the manager of the carwash could be one Mandar Singh, known as " Candy " or " Kandy ". 52Mr Wright noted (Tp3, LL6-9) that it appeared from Dr Allnutt's report (not then before the court) that matters had been put to Dr Allnutt " inconsistent with matters already known to the court, both from evidence and things said directly on Mr Bek's behalf by Mr Tabchouri and it is also said by Mr Bek himself when he has been before your Honour. That impacts upon the conclusions that Dr Allnutt draws ". 53After some affidavit and documentary evidence was read by Mr Wright, Dr Allnutt arrived in the courtroom. His written report of 13 October 2009 was tendered without objection ( Exhibit B2 ), and he was given time to consult again with Mr Bek in the precincts of the court. The purpose of his attendance at court on 21 October 2009 was to canvass with me the threshold question of Mr Bek's fitness to plead and/or stand trial, not simply his understanding of what the court's orders required of him (Dr Allnutt's oral evidence on that day appears at T21.10.09, pp15-17). 54In response to a question from me (Tp17, LL14-19), Dr Allnutt said that Mr Bek's decision to change his plea could be " tainted " with the same difficulty as the making of a plea. 55Dr Allnutt concluded (T17, LL33-35) " if he's got short term memory difficulties he won't be able to engage on a day to day basis ", and, on the basis of Dr Allnutt's evidence on 21 October 2009, I granted the request for further adjournment of the hearing. 56The court then embarked on the fitness inquiry which finally came to a conclusion on 10 November 2011 that Mr Bek was " fit " (see judgment (2) [2011] NSWLEC 196, which I will not quote in great detail in these reasons. See also ASF pars 32-35, 37-39, 41-42) The defendant ceased to participate until arrested 57Until arrested on 29 June 2011 on the warrant I issued for his arrest, Mr Bek did not respond to any approaches from Council or the court to advance the court's consideration of his fitness to plead or stand trial. 58In the judgment on fitness ([2011] NSWLEC 196) some of the above history was sketched, and I went on to say, taking up the story as at 21 October 2009 ([21]-[26]): 21. Dr Allnutt's report and oral evidence on that day caused me serious concern. He urged the court to "proceed cautiously", and suggested the proceedings be further adjourned, so that he could have Mr Bek undergo neuropsychological testing, the results of which would then be placed before the court before acceptance of the plea of guilty. 22. Mr Bek was subsequently referred for psychometric testing by Dr Susan Pulman. 23. There was some delay in assembling and considering the medical and psychometric evidence, and the matter had to be further adjourned on several occasions. 24. By 14 May 2010 Mr Haseldine had lost contact with Mr Bek and was uncertain as to his whereabouts. The solicitor for the Council was also unable to locate him, but wished to have further psychometric testing done on its own behalf. 25. In June 2010, Council sought the court's assistance in having Mr Bek see Professor Stephen Woods for psychometric testing. At Council's urging, the court, rather than making formal orders, issued formal requests for Mr Bek to attend that testing. 26. Mr Haseldine withdrew from the case on or about 27 July 2010 when the legal aid grant was withdrawn, but he has returned to the matter since I issued a warrant for Mr Bek's arrest on 17 May 2011. 59When Bek was arrested and brought before the court on 29 June 2011, I placed on record a lengthy background history of the matter leading up to the issue of the warrant (see T 29.06.11, p2 L48-p6 L7) - the undertaking given 11 March 2009; the continuation of operations on 16 March 2009; the claim he had sold the business; the warning from Dr Allnutt on 21 October 2009; the delays in finalising some medical evidence; Mr Bek's failure to attend medical assessments; the frequent setting and vacating of hearing dates; the withdrawal of legal aid and Mr Haseldine; Mr Bek's failure, against his best interests, to respond to the formal requests made by the court; the warnings conveyed, including personally, to his mother, that a warrant may be issued; the need for him to be represented; and so on. 60I said (at T 29.06.11, p5 LL3-25): Since seriously trying the patience of the Court and that of his own representation on 18 May 2009, Mr Bek has enjoyed extensive latitude and patience. (a) He broke contact with his senior, experienced and publicly funded legal representation; (b) The trial for contempt remains part heard from 18 May 2009 and the Court has declined to proceed with it until there is before me sufficient evidence to determine the question of his fitness, (c) Whereas Dr Allnut (sic) has expressed a considered preliminary view on his psychiatric circumstances, the defendant has ignored the need for him to have them further explored with a result that a fitness inquiry which would be best served in his own clear interests by his co-operative participation has been unable to proceed. Since first warning him on 18 May 2009 of the serious risk that the Court would issue a warrant for his arrest, the Court had refrained until now from doing so. Evidence filed on the Council's behalf but not yet tested strongly suggests Mr Bek's continuing personal involvement in the Newtown car wash and its ongoing breach of the law. It also suggests his own ongoing capacity to conduct somewhat complex business affairs without overt assistance. Clearly this matter must be advanced to its conclusion in the community's interest represented by the Council and in the personal interest of Mr Bek. His continued avoidance of his obligations to address the fitness question, not to mention the contempt charge itself, could lead to a massive injustice which the Court must do it's best to avoid. 61I concluded (T 29.06.11 p6 LL5-7): ... you must participate in these proceedings. It is in your interest and continued disobedience of the Court, whether it is its orders or its invitations will not be accepted. 62In the fitness judgment on 10 November 2011, I dealt with the expert evidence provided by Professor Stephen Woods, Dr Susan Pulman, and Dr Allnutt. I also considered the 14 May 2009 report of the Probation & Parole Service, and an affidavit sworn by Gregory Totten on 3 November 2010, dealing with his commercial negotiations and dealings with Bek. I concluded ([67]-[70]): 67. The court finds that all the experts' evidence presented at the conclusion of their investigations of Mr Bek is unanimous and firm in its effect. 68. Accordingly, the court finds that Mr Bek was, at the time of changing his plea to guilty on 11 March 2009, fit to do so, and that he remains fit for the sentencing hearing, part-heard from 19 May 2009, to continue. 69. Mr Haseldine was not in the case at the time of the presentation of the prosecutor's evidence on 18 May 2009, and I direct the parties to agree upon, and submit to me, directions for the future conduct of the sentencing hearing, and to approach the Registrar to obtain a hearing date(s). 70. As the PPS report dates from that 2009 hearing period, I agree with the prosecutor that a new one should be prepared. At the end of the inquiry hearing on 8 November 2011, Mr Haseldine agreed (T 08.11.11, p17, L14) with that as "an appropriate course", and I will direct him and his client to make the necessary arrangements forthwith. 63The sentencing hearing was then fixed to resume on 22 February 2012 . The use at the subject site 64While the Council and the court were trying to get Mr Bek to appear and/or take some interest in these contempt proceedings, Council and the court continued to deal, outside these proceedings, with the use of the subject service station/carwash site. 65On 10 November 2010 , Commissioner Tuor delivered her judgment in matter 10754 of 2009 (see [51] above) on 10 November 2010: Andary v Council of the City of Sydney [2010] NSWLEC 1307. 66The class 4 proceedings giving rise to the contempt proceedings arose from the refusal of DA No.D/2008/31 on 14 May 2008. There was a subsequent refusal of consent on 4 December 2008 of DA No.D/2008/1766 in respect of carwash related structures, but the DA the subject of the Tuor proceedings (No.D/2009/403) concerned " continue (sic) use" as a service station and the use of "existing internal mechanical bays for the purposes of washing and greasing of vehicles ". It was signed and lodged by " Andrew Yani " on 24 March 2009, and bore the owner's consent signed by Richard and George Andary as directors of Andary Property Investments Pty Ltd. Yani was trading as " Andrew's Petrol Station " and wrote to the court on 9 October 2009 authorising the owner of the site to bring the appeal, which was filed 13 October 2009. The DA did not seek approval for " continuation of the present use of the site as a commercial carwash ". Rather, it sought to continue the approved service station use, and to use the internal mechanical bays for washing of vehicles as shown on the amended plans. In par [50] Tuor C acknowledged the weight placed by the experts on " the operation and impacts of the unauthorised carwash and the unacceptable actions of previous operators " (my emphasis). A plan of management for the site was before the court, but no " future operator " was identified. 67Tuor C upheld the appeal and granted consent on conditions, including 7(e), which requires that the carwash operate only in conjunction with the service station, a use approved since 1952. 68The lease of the premises to Mr Bek's company was still on foot at the time of the Tuor proceedings, a 5 + 5 year lease having been entered in August 2007. The lack of identity of the future lessee or operator and the currency of legal action to evict the leaseholder, are referred to in the Commissioner's judgment at par [80]. My judgment in the original class 4 proceedings was also in the court file, but it was also asserted amongst the material that the use of the site purely as a commercial carwash was continuing during the course of the Tuor proceedings. Council submitted to Tuor C that Yani was a " phantom " acting for Mr Bek. It was noted that the SEE to the DA had been prepared at Mr Bek's request. 69In his written submissions to me Mr Wright notes (par 14) that Tuor C's consent has not been acted upon. However, he relied upon an affidavit sworn on 20 February by Council officer Michael Marks, who deposes to his inquiries confirming that the carwash ceased operation about July 2011 in favour of a service station, associated shop, and a mechanical workshop (separately operated by Paul Manitsas, a lessee from the George Andary Family Trust). The carwash was last operated by " Suni ", and local neighbour complaints have apparently ceased since it closed. Factual evidence 70Given Bek's admissions the ASF, I will not recount all the evidence Council led on 18 May 2009 , simply noting that oral evidence was given, inter alia, by Andrew Martin (a consultant town planner engaged by Mr Bek on his own account and later by Mr Bek on behalf of Mr Yani), Richard Andary and Jaykar Upadhyay (representing the George Andary Family Trust and associated Andary family interests, which own the subject site), and Robert Lancaster (an appropriately licensed Private Inquiry Agent and Security Consultant, engaged by the Council to conduct certain investigations to identify and locate Mr Yani). 71As at 18 May 2009, neither Mr Andary nor Mr Upadhyay had been successful in actually seeing/meeting Mr Yani, and Mr Upadhyay said that the defendants were still paying the rent for the site. Mr Andary said he would not agree to assign the lease until he met Mr Yani, and even then he would require Mr Bek to continue his guarantee in respect of the premises, and require Mr Yani to satisfy him he had all relevant approvals for the business he conducts on the site. Mr Lancaster could find no trace of him. 72Exhibit C6 tendered on 18 May 2009 was an email sent to the court by " Andrew Yani " of " Andrew's Petrol Station, 536A King Street, Newtown " from a " hotmail " address, on 20 April 2009, saying that he is " the new owner of the new business " at that address, but cannot attend this court in response to the subpoena ( Exhibit C1 ) " because of my pre booked flight to Greece on the 22 of April this Wednesday. I will be at Greece approx 3 to 4 months ". 73Exhibit C7 contained copies of two documents produced to the court by Mr Andary, and said by him (consistent with fax transmission notations on them) to have been provided by Macquarie Lawyers on some (unclear) date in April 2009, bearing handwritten dates of 11 and 12 March 2009, and purporting to detail some of the particulars regarding the alleged sale of the subject business by Bek to Yani, effective " today 11.3.09" . 74Exhibit C8 included a lease from Andary to the defendant company, operating from 1 October 2007 to 30 September 2012, with an option to renew for a further five years. The permitted use of the leased premises is " Service Station and Car Wash/detailing ". Moin and Danny Bek of 51 Northcote Street Canterbury are named as guarantors. 75When the hearing resumed on 21 October 2009 , Exhibit C10 was tendered, providing additional information relevant to the lease arrangement: (i) the lease commenced on 1 October 2007 with an annual rent of $120,000 (c.f. August 2007, and $2,750pw, according to Bek's original evidence). (ii) the area of the site is approximately 630m 2 . (iii) Bek asked Andary on 11 March 2009 to consent to the transfer of the lease to Yani on the basis that Bek continued his personal guarantee. (iv) as at 12 October 2009 the lease had not been transferred, and Andary made clear that any sale without his permission was in breach of the lease, as was operation of a business which did not enjoy appropriate consent, and that the court's orders should be complied with. (v) Bek says Yani paid him "$20,000 cash " for the " sale " of the business on 11 March 2009. (vi) Yani had registered, on 13 March 2009, from Showground Road, Castle Hill, the business name " Andrew's Petrol Station & Carwash " in respect of the subject site. 76Other evidence presented by Council on 21 October 2009 included (1) an affidavit from Alex Singh dated 29 May 2009, supplementing his evidence to include details of a conversation he had with " Yani " on 8 May 2009, regarding the need for him to attend court, and making clear to him that the continued use on the site was illegal, and (2) an affidavit by John Albert Baxter, sworn 20 July 2009. Mr Baxter deposed that he is a sales representative for "Lavazza " coffee. He met Mr Bek at another " Sydney's Carwash Café " site at 926 Hume Highway, Bass Hill on 30 March 2009. Mr Bek told him that he had " another site " at Newtown. They discussed supplying coffee to all three sites, the third being at 880 Pacific Highway, Gordon. Mr Baxter has never met either Mr Bek or Mr Yani at the Newtown site. On 22 May 2009 Mr Bek informed Mr Baxter that Yani was " the fellow I'm selling the business to ". Attempts by Mr Baxter to make direct contact with Yani had been unsuccessful. 77Most of the Council's non-lawyer witnesses (apart from Mr Baxter) deposed - and their evidence is largely corroborated - to seeing the carwash operating contrary to the Orders made on 16 September on the following dates: September 18, 20, 22, 24, 26, October 22, 2008; 8, 11, 12, 14 and 15 March, and 3 and 11 May 2009. Mr Lancaster's surveillance evidence confirms continued operation of the carwash up until the date of his latest report, 8 May 2009. There is some evidence of intensification of the advertising of the carwash, but the gantries had gone by 14 or 15 March (T18.5.09, p26, LL28-34). At least one witness testified to some degree of " public nuisance " to users of the footpath and close neighbours. Some of them depose to what I will describe as " unfortunate incidents " occurring during surveillance on 20 and 24 September 2008. Admissions regarding the illegal operation were made on site on 22 October 2008. 78Evidence was also given that Mr Bek made inquiries at Council's Redfern office on 12 March 2009 about obtaining consent for the operations which his earlier plea of guilty acknowledged breached the law, and of someone claiming to be Mr Yani, but unable to identify himself, calling on Council officers on 30 April to discuss his DA . 79" Mr Yani " gave Council two addresses - one at Castle Hill which simply does not exist, and one in Queensland which Mr Lancaster traced to a man pictured with Mr Bek on his " facebook" , whose name (" Joseph Frank Scaf ") police record (in Exhibit C5) as being used on occasion by Mr Bek. 80Mr Martin prepared the " expert " parts of the DA which went before the court in Andary's class 1 appeal, but on instructions given personally by Mr Bek, and purportedly confirmed in part by a text message from " Yani ". 81Mario Caruana of the Service Station Association Ltd ('SSA') confirmed that the evidence given to the court in the August 2008 hearing about Mr Bek's alleged then current membership of the SSA was false. 82As already noted Mr Bek was neither actively involved nor legally represented in the contempt proceedings between 14 May 2010 and his arrest on 29 June 2011 but the Council appeared regularly in the court during that period, providing the court with updating information from time to time, commencing especially on 28 July 2010 . 83Alex Singh and Mardi Flick had attended the site on Council's behalf on 31 May 2010. Staff were present, but the roller doors were down and the carwash was not operating. They made telephone contact with " Kandy Bhullar " or " Kandy Harbis ", who referred Singh to " the manager Danny Bek ", who was said to be operating a carwash at 880 Pacific Highway Gordon. " Kandy " later contended that he bought the Newtown business from Danny Bek, after Singh had spoken to him on 31 May, but sold it back to Bek one month later. There were no formal documents, only handwritten documents. Kandy told Singh that Bek had then sold the business to Sandeep Singh and another person called " Shaffy ", but when that sale did not complete, Bek was running the carwash again. Kandy enquired if the carwash was approved because Bek had told him it was " 60% approved ". The Kandy, Sandeep and Shaffy lines of inquiry proved fruitless to the Council's investigations. Andrew Yani 84On 16 March 2009, the respondents' then solicitors told the court that the carwash business had been sold to Andrew Yani on 11 March 2009. Council suggested to the court on 18 May 2009 (T p57, LL47-48) that Mr Bek was continuing to operate the offending business through " this phantom ", Andrew Yani, but Mr Bek told the court on 19 May that Andrew Yani definitely existed and had been entirely responsible for the business on the site since Bek's sale to him on 11 March 2009. 85The evidence I relevantly had prior to 22 February 2012 was as follows: (a) A highly experienced investigator, Mr Lancaster, after an intensive search, was confident " Andrew Yani " was no more than an " alias " or assumed name, and gave sworn, oral and affidavit evidence to that effect (T18.5.09, p61, LL45-50). The names which " Yani " provided both in respect of his wife (" Georgia Yani ") and of his Queensland business (" ASV Parts and Automotive ") simply did not check out (see T18.5.09, p62, LL6-12, and 22-30). (b) Yani failed to respond to the court's subpoena, and conducted all the dealings of which the court has any evidence, by email or text message. Mr Bek has mostly communicated on Yani's behalf with key people such as Messrs Andary, Upadhyay, and Martin. Ms Messiha told the court that her firm knew Yani was the purchaser of Bek's Newtown business, but had never spoken to him. (c) A person claiming to be Yani called on Ms Brown and Mr Fozzard at the Council on 30 April 2009 to discuss the DA lodged in his name on 24 March 2009, but he could not produce identification, was uninformative about how the business ran, and spoke of " Andrew" in the third person. A person purporting to be Yani spoke with Alex Singh by phone on 8 May 09 regarding (1) the subpoena served on him (and further brought to his notice on 30 April), (2) his duty to attend court, and (3) the risk of a warrant being issued for his arrest. Both of those conversations took place after Yani's purported departure for Greece - he told Mr Singh that he was " too busy " to attend court on 18 May. (d) When Yani registered his business name (" Andrew's Petrol Station and Carwash" ) on 13 March 2009, the home address he gave (at Castle Hill) did not exist, and the date of birth he gave (6 November 1977) could not be verified. Yani and any such business were unknown to the SSA when Mr Caruana gave his evidence (T18.5.09, p42, L38-P43, L1). Nor could the Department of Immigration verify the trip to Greece upon which he originally relied to avoid attending court on 18-19 May. The solicitors nominated as acting for him on the purchase of the business know Bek, but deny knowledge of Yani. Yani refused to provide Council with contact details, despite having a current DA before it, which might progress while he was/is supposedly in Greece, and he ignored a request for an undertaking to cease unauthorised use of the site. 86On 22 February 2012, Bek admitted as follows (ASF pars 24-27): 24) As a result of this information, significant efforts were made by the Prosecutor to contact Mr Yani and to serve him with documentation. Following an extensive investigation by the Prosecutor and private investigators, the following facts were established and are now admitted by Mr Bek to be true: a) The address given for Mr Yani, namely 240 Showground Rd, Castle Hill does not exist; b) Various manifestations of the address were not able to result in locating Mr Yani; c) A person purporting to be Mr Yani telephoned Ms Emma Brown, Planner of the Council of the City of Sydney at approximately 4:30pm on 29 April, 2009 and advised that he was in Queensland; d) A person purporting to be Mr Yani telephoned Ms Brown at 11:39am on 30 April, 2009 advising that he had just arrived in Sydney and would be at Council in 10-15 minutes; e) Shortly before midday on 30 April. 2009, a person purporting to be Mr Yani attended the offices of the Council of the City of Sydney. He did not produce evidence of his identity and said that he lived at 1 Brampton Avenue Cranebrook, Queensland. 25) The property 1 Brampton Avenue, Cranebrook, was at that time owned by Joseph Frank Scaf. This name has been used as an alias by Mr Bek and appears on his criminal history as such. 26) Dealings with Mr Yani by Andrew Martin, Planner, by Sattouts, Solicitors for Mr Yani according to the contract for sale of business and by Mr Richard Andary, owner of the Premises were conducted via Mr Bek or via text messages. 27) Mr Bek now admits the facts set out in paragraphs 24, 25 and 26 and admits that the purported sale to Mr Yani was a sham and that he continued to operate the business until October 2010 in breach of the Court's orders. Mr Bek does not know who continued to operate the carwash between October, 2010 and July, 2011. Findings 87The use of the site which gave rise to the original proceedings continued, despite their outcome on 16 September 2008, until sometime in about July 2011 (ASF pars 19-22, & 40). That continued use gave rise, as early as 30 October 2008, to the present contempt proceedings. Despite the alleged sale of the business on 11 March 2009, Bek continued to pay the rent until at least 12 May 2009 (ASF par 29), and, now admits responsibility for that ongoing illegal use, and some intensification of it, from 16 September 2008 until approximately October 2010. 88As Mr Wright submits (pars 17-18): 17. Mr Bek engaged in an elaborate sham to avoid the consequences of the Court's orders by inventing the fictitious character "Andrew Yani" and then suggesting that the business had been sold to him. Mr Bek actively misled the Council and the Court in his claims that the business had been sold to Andrew Yani and further misled the Council in his attempts to process a development application in the name of Andrew Yani. 18. He deliberately attempted to avoid the Court's orders by this sham and continued to conduct the business at the premises. Consideration 89A long line of cases in this court establishes that enforcement of the process and orders of the court, and punishment for their breach, as a vindication of the court's authority, are important functions of contempt sentencing. See, for example, Lloyd J in Environment Protection Authority v Pannowitz (No.2) [2006] NS W LEC 797; (2006) 153 LGERA 126; Biscoe J in Mosman Council v Kelly (No 6) [2010] NSWLEC 20; Craig J in Jeray v Blue Mountains City Council [2011] NSWLEC 28; Pepper J in Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79; and Pain J in Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104, and (No 6) [2011] NSWLEC 132. See also Pang v Bydand Holdings Pty Ltd [ 2 011 ] NSWCA 69 and Australian Securities and Investments Commission v Sigalla (No.4) [2011] NSWSC 62. 90As contempt proceedings are realistically seen as criminal in nature, the prosecutor must prove its case against the defendant beyond reasonable doubt. 91Normal sentencing principles and considerations apply, so that the usual " instinctive synthesis " of objective seriousness of the offence and subjective factors of the offender must be undertaken. See Markarian v R [2005] HCA 25; (2005) 228 CLR 357, and Crimes (Sentencing Procedure) Act 1999 (' the CSP Act' ) ss 3A and 21A. 92There should be elements of both general and specific deterrence in the sentence imposed, but the court must first establish the relevant level of culpability, and punishment should be " emphatic ": Pelechowski v Registrar, Court of Appeal [1999] HCA 1 9 ; (1999) 198 CLR 435, per Kirby J (at [149]). 93Some of the provisions in the CSP Act mirror the landmark listing of relevant considerations by Dunford J in Wood v Staunton ( No 5 ) (1996) 86 A Crim R 183, at 185, namely: a. The seriousness of the contempt proved; b. Whether the contemnor was aware of the consequences to himself of what he did; c. The actual consequences of the contempt on the relevant trial or inquiry; d. Whether the contempt was committed in the context of serious crime; e. The reason for the contempt; f. Whether the contemnor has received any benefit by indicating an intention to give evidence; g. Whether there has been any apology or public expression of contrition; h. The character and antecedents of the contemnor; i. General and personal deterrence; and j. Denunciation of the contempt. 94All breaches of any court's orders are serious, even if they can be characterised as " technical ", but deliberate defiance of them, and especially failure to honour undertakings to the court to comply with them, normally elevates the defendant's conduct from " wilful " to " contumacious " contempt, in the sense of the meaning given to that term in Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309, where Kirby P (at 314 f) made clear that intentional disobedience does not always involve " a conscious defiance of the authority of the court ". It is that which is " the essence " of a contumacious contempt, because it is " aimed at the integrity of the courts and designed to degrade the administration of justice ", as distinct from disobedience which simply interferes with property rights manifested by a court order. 95Financial gain can be relevant. In the present case, the collapse of Bek's business and loss of his savings were incentives for him to disobey, but his operation had proven to be fairly profitable (see substantive judgment at [29]). 96Of Dunford J's ten factors set out above, those numbered (a), (b), (e), (g), (i), & (j) are relevant here and are discussed in what follows. 97While the defiance lasted, there was serious environmental harm caused to the neighbourhood, all virtually eliminated by compliance. 98Bek had good legal advice (T. To of Counsel, Mr Tabchouri, and Mr Haseldine) as to his rights and obligations, and access to planners (Creighton and Martin). He also knew that planning information could easily be obtained from council, and he sought it both before opening the carwash, and after he lost the case, and pleaded guilty to contempt. 99He now admits that he should have ceased the use, but, instead, he falsely claimed he had sold the business, and embarked upon what can only be described as an " elaborate scam ". He also admits now to what Mr Wright describes (pars 41-44) as " systematic, deliberate and continued defiance of the Court's orders even after the plea of guilty was entered on 11 March 2009 ," and he plainly made false statements to the court while continuing his " flagrant defiance ." 100The objective circumstances of Bek's contumacious contempt are clearly very serious indeed, even if the only lasting harm caused is to the integrity of the justice system rather than the environment. 101I turn, therefore, to Bek's " subjective circumstances ". Bek himself 102He was born in 1980 and has three siblings. His parents separated when he was about 15, but appear to own the two houses where he can normally be found. His relationship with Mary Sarkis commenced in about 2007; they married on 12 October 2008, and now have two small sons. She stood by him in both the business and the proceedings. He has played a big role helping his mother and younger siblings, including in her convenience store business (even though he suggested to the court on 29 June 2011 that it had been " subleased out " - T p6 L45). He has no background of exposure to domestic violence, or physical or sexual abuse ( Exhibit B2 p3). 103His antecedents ( Exhibit C11 ) include convictions for violence, dishonesty (including the use of false names and statements), and breach of court-imposed conditions, as well as a range of driving/traffic offences. The two most recent entries (2008-9) concern regrettable incidents associated with neighbourhood and council reaction to his continued breach of the planning law. The Prosecutor knows of no prior offences of contempt, and there is nothing on the convictions history after 2009, consistent with what he told the court of his improved behaviour since his marriage. 104The PPS notes his past record of " poor compliance " with alternative sentencing options, and in earlier times he has spent some time in custody. 105He has serious problems with his eyes, necessitating surgery in the past, and likely more in the future. He explained to the court that one eye is virtually useless, and the other functions only with a special contact lens. He also suffers from memory problems, migraine, stress, pain, depression and associated problems. He told Dr Allnutt that he had seen a psychiatrist in Burwood some (perhaps 5 or so) years ago, but that there is no family history known to him of mental illness. He is an occasional drinker and smoker, but has never " abused illicit substances " ( Exhibit B2 , pp 2-3, and Exhibit C13 , p1). 106He complained to the PPS and Dr Allnutt about the stress of financial problems, including the cost and consequences of the proceedings, and the alleged failure of the subject business. He has been working as a cash-in-hand labourer, and regularly, but part-time, in his brother's carwash businesses. He left school after Year 10 and worked at McDonalds, and then, for 3 or 4 years at a " machine factory " of some sort before starting his own business. He undertook some electrical trade training. He told Dr Allnutt that he felt he had not had " a fair go in life ". 107He told the court on 19 May 2009 (T19.5.09, p9, L40-p10, L16) that he had " lost so much money in this business ", that he was then out of the subject carwash business, and any car-related industry, and that he wanted " to start a new life " and " start a family ". The contempt was ongoing at that time, but both he and his wife testified in the sentencing hearing that they eventually lost all of the savings of $80,000 that he invested in the site. 108Mr Bek's mother told Dr Allnutt that Bek had attended a " special school ", for unspecified reasons but possibly for " reading problems ", and the PPS psychologist reports that he has " significant difficulties with cognitive functioning ", is "s uffering from depression or anxiety ", has " minimal insight " about his predicament, and has " poor understanding " of business, and of compliance issues. On the other hand, the evidence reveals that, apart from the elaborate Yani scam, his business made a quite sophisticated commercial response to complaints from Nickelodeon that the carwash had, in its advertising, " ripped off " Sponge Bob Super Pants. 109Because of the fitness inquiry precipitated by Dr Allnutt's concerns, the court has had the benefit of extensive expert evidence regarding Bek's cognitive capacity and mental health. As Mr Wright noted (submissions par 21): The overwhelming and ultimately uncontested medical evidence accepted by the Court in determining that Mr Bek was indeed fit to stand trial also confirmed that he understood the nature of the Court's orders from the date they were made and had the capacity to understand them throughout the period from 16 September 2008 to the date of the final hearing of the fitness question on 8 November 2011. The Plea of Guilty 110Bek pleaded guilty to the charge of contempt on 11 March 2009 and maintained that plea thereafter. However, he made no attempt to purge his contempt, but rather constructed an artifice to disguise his role in the continued breach of the court's orders. He maintained that artifice until he appeared in court on 22 February 2012. 111Accordingly, his plea had none of the usual utilitarian value which attracts an R v Thomson discount. It also involved no genuine expression of contrition, no acceptance of his culpability, and no acknowledgement of the importance of complying with orders of the court. Cooperation 112His failure to cooperate with the Council or the court was continuous and abject, until the court had him arrested. Thereafter he appears to have been reasonably cooperative, albeit that it was always in his best interests to cooperate in matters touching the fitness inquiry. Contrition and Remorse 113He expressed some level of contrition for his long standing avoidance of the Council and the court when he appeared in custody on 29 June 2011. He then agreed to a statement of facts, containing admissions having serious implications for himself and his family. He came to court with a long letter of apology ( Exhibit B3 ), requesting leniency, and insisted on entering the witness box to make his apology on oath. I have taken these matters into account, to his credit. Family Matters 114Another subjective consideration for the court is the strong support for him demonstrated by his mother, Salam, and his wife Mary. Both have need of his help and support. He and Mary have commenced their family, but at the serious cost to them of serious blood pressure complications for Mary. The oral evidence of all three, and his letter, confirm Mr Haseldine's description of him as " heart of gold, but rather thick ". Mary used similar words, and " stubborn ", but also mentioned that he was a hard worker, and a " beautiful family man ", who was seriously affected, indeed " stressed, shattered, depressed and heartbroken " by the loss of his substantive case, and thus his business and the savings he had invested in it. Mary conceded that she knew they needed to maintain the primary use of the subject site as a service station. The Sentence 115The difficult task of fashioning the " right " combination of penalties and other orders in criminal cases is well analysed in leading authorities, eg R v Rahme (1989) 43 A Crim R 81, quoted by me in Environmental Protection Authority v Pal [2009] NSWLEC 35. 116Specifically on questions of penalising contempt, the Prosecutor usefully referred me to a number of cases in this court, and the Supreme and Federal Courts. While all have useful things to say, it is clear that each case turns on its own particular facts. Certainly terms of imprisonment, community service orders, substantial fines, daily penalties, and heavy costs orders all have a place in sentencing for contempt. 117Under s5 of the CSP Act the court must not impose a sentence of imprisonment unless it concludes, after a full consideration of all punishment options, that no alternative penalty is appropriate. 118On any analysis of the objective circumstances in this case, a term of imprisonment is appropriate, in addition to a substantial fine. However, I have come to the view that subjective considerations dictate that the prison sentence should be suspended. As Windeyer J so eloquently said in Cobiac v Liddy (1969) 119 CLR 257, at 269: " The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy ". 119I have considered the alternatives, but the PPS has twice assessed Bek as unsuitable for a Community Service Order ( Exhibit C13 ). That is unfortunate as that option would have appealed to me, as it did in Environmental Protection Authority v Pal . (I note here that there have been strange inconsistencies in the various histories given by Bek to the Court, the authorities and the doctors). 120Although a huge burden will be cast on Bek and his young family, by imposition of an appropriate fine and appropriate costs orders, a penalty proportionate to the gravity of the office, and deterrent in its impact, on both the offender and others, must be imposed, and I have concluded that a suspended prison sentence must, in this case, be accompanied by a fine. 121Bek has been described as a hard worker, despite restrictions in eyesight and cognitive capacity. He started work at 16 and by his late 20s on his own evidence, had accumulated $80,000 in savings which he invested in his ill-fated Newtown carwash, and lost. His current earnings appear modest, on average, so it will take a considerable time for him to raise or pay off any large impost, let alone two. I have reduced the fine to $30,000 to take appropriate account of the subjective considerations. Conclusion and Orders 122It is clear from what I have written that whatever may be said in his defence, I consider that the contemnor's behaviour has been absolutely disgraceful. 123The court accepts that the Council's success in its proceedings against him was, for him, a " disaster ", but he was clearly advised what the orders meant, and he took some action accordingly. 124However, he intensified the use and embarked upon a campaign rooted in dishonesty. He interfered with Council officers legitimately doing their duty to enforce the planning law and the orders of the court, and he actually lied to the Council and in open court on several occasions. 125His behaviour was deliberate and systematic, and the disdain and disobedience he displayed were sustained, despite extraordinary restraint and fairness on the part of prosecuting counsel and those instructing him, and generous consideration on the part of the court at every turn. The costs to the Council and to the justice system have been appalling. He accepted no blame until the very last minute when the case against him was overwhelming. 126Accordingly, I make the following orders: 1. That Daniel Bek is convicted of the charge of contempt of court particularized in the Statement of Charge filed in the court, with the Notice of Motion dated and filed on 30 October 2008. 2. That Daniel Bek is sentenced to a term of imprisonment for one year and nine months. 3. That the execution of the sentence imposed by Order 2 of these orders be suspended for the term of that sentence in accordance with Section 12 of the Crimes (Sentencing Procedure) Act 1999, on the following conditions: (a) that Daniel Bek will appear before the court if called to do so at any time (b) that Daniel Bek be of good behaviour (c) that Daniel Bek will advise the Registrar of the Court of any change of residential address 4. That Daniel Bek is fined the sum of thirty thousand dollars ($30,000). 5. That Daniel Bek is ordered to pay legal costs and the prosecuting Council's investigation expenses as follows: (a) the costs of the substantive proceedings up to and including the date of the first judgment, delivered on 16 September 2008, on a party - party basis, as agreed or assessed according to law (b) all costs and investigation expenses incurred by the prosecuting Council from 16 September 2008 up to and including the date of the third judgment, delivered on 23 February 2012, on an indemnity basis, as agreed or assessed according to law, except that each party is to pay its own costs incurred between 29 June 2011 and 8 November 2011, both inclusive in respect of the question of Daniel Bek's fitness to plead and/or stand his trial on the charge of contempt. 6. That the orders and undertakings made on 29 June 2011 and varied on 25 August 2011 in respect of arrangements akin to bail, and including reporting to Campsie Police Station, are vacated, with the cash security lodged by Salam Bek to be repaid to her. 7. That all exhibits be returned except Exhibits B3, C11, C12 and C13 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2012