Imprisonment for contempt of court orders

Imprisonment for contempt of court orders

Faukland & Shikia [2016] FamCAFC 83 (25 May 2016)

The following is annotated.

Summary:

Where the appellant appeals against the severity of his sentence – Where appellant sentenced to three months imprisonment for each contempt to be served consecutively and wholly suspended indefinitely – Whether the primary judge erred in ordering that the term of imprisonment be served consecutively – Whether the primary judge erred in suspending the term of imprisonment for an indefinite period – Where as a general rule a suspended sentence should only be suspended for a fixed term – Appeal allowed in part – Appellant re-sentenced – Consecutive terms to be wholly suspended for fixed term upon conditions.

1. By Notice of Appeal filed on 31 August 2015, Mr Faukland (“the appellant”) appeals against the severity of the sentence imposed on him for contempt. The contempt arises in the context of proceedings for the settlement of property commenced by Ms Shikia (“the respondent”) following the breakdown of the parties’ relationship.
2. Those proceedings came before Judge Bender of the Federal Circuit Court on 25 June 2014 on which occasion her Honour made orders, including an injunction which restrained the appellant from disposing of a prestige motor vehicle other than with the written consent of the respondent or pursuant to an order.
3. The motor vehicle was registered in the appellant’s sole name. By email dated 14 December 2014 the appellant informed the solicitor for the respondent that the car had been sold for $90,000 and was now in possession of the named purchaser. According to the appellant, the sale price was paid in cash which he spent in gambling and on drugs. These revelations, and concerns the appellant had disbursed a further $170,000, prompted an urgent application by the respondent for various orders. This application came before Judge Bender on 19 December 2014.
4. On 19 December 2014, in an affidavit drawn on his behalf by a legal practitioner, the appellant made a number of admissions including confirming the information recently given to the respondent’s solicitor; in particular, that he sold the car to a person named Mr P for $90,000 and that Mr P had taken possession of the car and the appellant did not know of Mr P’s or the car’s whereabouts.
5. Thus, on 19 December 2014, the primary judge ordered, inter alia:

…

6. On or before 12.00 noon on 22 December 2014, the Respondent [Mr Faukland] shall provide to the offices of the Applicant’s solicitors full contact details including name, address and telephone number of the alleged purchaser (“the purchaser”) of the [prestige] motor vehicle registration number […] (“the [motor vehicle]”).
7. In the event the Respondent fails to comply with Order 6 herein, the Respondent shall deliver up possession of the [motor vehicle] together with the keys to the [motor vehicle] to the offices of the Applicant’s solicitors no later than 4.00pm Monday 22 December 2014.

…

6. The appellant did not comply with either order.
7. Hence, on 29 January 2015, the respondent filed an application for the appellant to be dealt with for contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) (“the Act”). Based on that application, it was put to the appellant he was guilty of contempt as follows:
   • In failing to comply with Order 6 of the orders made on 19 December 2014 in that he failed to provide to the offices of the applicant’s solicitors full contact details, including name, address and telephone number of the alleged purchaser of the motor vehicle; and
   • For failing to deliver up possession of the motor vehicle together with the keys to the motor vehicle to the offices of the applicant’s solicitors by 4.00 pm on 22 December 2014 in breach of Order 7 of the orders made on 19 December 2014.
8. The appellant denied being in contempt.
9. On 6 August 2015, after a defended hearing, the primary judge found that the appellant was in  contempt of court  in the manner alleged. The appellant was sentenced to a term of imprisonment for three months on each contempt, to be served consecutively and each sentence was then suspended indefinitely and unconditionally.
10. The orders made on 6 August 2015 are set out below:
    1. With respect to Charge 1, being that the Respondent is in  contempt of Court  for failing to comply with Order 6 of the Orders of this Court dated 19 December 2014, the Respondent is sentenced to a term of imprisonment of three (3) months.
    2. With respect to Charge 2, being that the Respondent is in  contempt of Court  for failing to comply with Order 7 of the Orders of this Court dated 17 [sic] December 2014, the Respondent is sentenced to a term of imprisonment of three (3) months.
    3. The term of imprisonment imposed pursuant to Orders (1) and (2) herein shall be served consecutively and are wholly suspended indefinitely.

12. As was mentioned earlier, the appellant appeals against the sentence. The appellant does not appeal the findings he was in contempt or that a period of imprisonment of three months for each count of contempt and its suspension was appropriate. Rather, the appellant challenges her Honour’s decision to order that the sentences be served consecutively instead of concurrently (ground 1). By ground 2, the appellant challenges the indefinite suspension of the term of imprisonment, his point being, the sentence will continue for the rest of his life and is, therefore excessive.

Concurrent or consecutive sentence?

13. In support of this challenge, the appellant contends that in formulating the sentence, the primary judge gave insufficient weight to his poor physical and mental health as a consequence of which the sentences should have been imposed concurrently.
14. The approach to sentencing for contempt under the Act is well settled and is as discussed by the Full Court in Abduramanoski and Abduramanoska [2005] FamCA 88; (2005) FLC 93-215. Abduramanoski concerned an appeal against severity of sentence for three counts of contempt arising out of breaches of property orders. As is not in doubt in this appeal, the Full Court at [67], [80] and [85] determined that Part XIIIB is a complete code for dealing with contempt and sentencing under the Act. In considering the severity of the sentence imposed by the primary judge, the Full Court discussed whether a term of imprisonment should be imposed cumulatively or concurrently for each breach. By reference to s 112AP, it was explained (at [60]):

The section does not specify whether a “global” penalty may be, or should be, imposed for more than one offence, or whether multiple allegations, if proved, should be subject of discrete sentences including imprisonment to be served either concurrently or cumulatively.

15. Having reviewed the approach taken to sentencing for contempt in various jurisdictions, the Full Court found examples of the imposition of both global sentences and of individual sentences for discrete breaches of orders. Ultimately, it was determined (at [80]) that s 112AP affords a sentencing judge a wide discretion, which is to be exercised transparently and in light of the individual facts and circumstances of the case (see also Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 as cited in Myers and Myers [2006] FamCA 1182; (2006) FLC 93-291).
16. In this matter, the appellant gave evidence that following the breakdown of the parties’ relationship he became addicted to methamphetamines. He also suffered a severe depressive illness and pain as a result of a workplace injury.
17. The primary judge discussed these matters at [38] of her reasons for judgment and again when considering an appropriate sentence. In this regard, the primary judge said:
    74. The Respondent’s explanation for his behaviour is that his life has spiralled out of control in the last 12 months since the breakdown of his relationship with the Applicant and that he has become a drug addict. He explains that because of the drugs he has not always thought clearly and has been acting in a manner that is in complete contrast to his character and behaviours prior to that time.

…

76. There is no doubt that the Respondent has some very serious physical and mental health issues and, to some extent, this provides a level of mitigation in relation to his behaviours.
77. I am of the view that the Respondent’s conduct and palpable disregard for this Court’s authority should attract a custodial sentence. However, given the Respondent’s physical and mental health issues, I am going to suspend that custodial sentence indefinitely.
18. And then, at [79], the primary judge determined “[t]hose sentences are to be served consecutively, and they will be wholly suspended indefinitely”.
19. To put her Honour’s finding in the first sentence of [77] in context, it needs to be understood no challenge is made to that finding nor findings that:
    • The alleged sale of the motor vehicle on 13 October 2014 was “in complete breach of the orders” of 25 June 2014 [8];
    • On 19 December 2014 the motor vehicle was in the appellant’s possession [48];
    • On 19 December 2014 the appellant had the capacity to either provide the details of the alleged purchaser or hand over the motor vehicle [49];
    • After the hearing on 19 December 2014 the motor vehicle was moved to Queensland and stored at the home of the appellant’s ex-wife [50];
    • The appellant’s affidavit evidence (sworn 29 January 2015) as to the disposition and whereabouts of the motor vehicle was “a complete and total fabrication” [51];
    • On 29 January 2015 the appellant knew the exact whereabouts of the motor vehicle and his statement to the court that he did not was a blatant lie [52];
    • The appellant failed to disclose he was in Brisbane on 30 March 2015 when the car was taken to a car dealership for prestige motor vehicles in Brisbane [59]; and
    • The appellant “has shown a blatant disregard for this Court and its orders and exhibits minimal remorse for so doing” [64].
20. These findings more than justify her Honour’s decision to impose consecutive rather than concurrent terms of imprisonment. Indeed, given the gravity of the contempt we have little doubt that a total sentence of imprisonment no longer than three months would have been insufficient. Her Honour’s decision that the contempts warranted a total term of imprisonment of six months was appropriate.
21. It cannot be doubted that the decision of the primary judge to suspend the term of imprisonment demonstrates that very substantial weight was given to the appellant’s health issues. The challenge raised by ground 1 cannot be sustained.

Indefinite suspension

22. As we said earlier, the gravamen of this challenge is that in ordering that the sentence be wholly suspended and without fixing a term for the suspension, the primary judge imposed a sentence that prima facie would continue for the rest of the appellant’s life. In so ordering, it was argued that the primary judge imposed a sentence that is excessive and contrary to the principle that as a general rule a suspended sentence should only be suspended for a fixed term.
23. In support of that latter proposition, the appellant relied on Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319 and the cases there cited. Hughes also concerned contempt of orders and a sentencing regime which applied principles similar to those contained in s 112AP. Relevant to this appeal, in relation to the proper approach to be adopted to suspension of a term of imprisonment the Full Court of the Federal Court said (at [56]):
    56. … We are, however, firmly of the view that it is rarely, if ever, that an order should be made suspending the whole or part of a term of imprisonment for an indefinite period. There must come a time when a person who is the subject of a conditional suspension of a term of imprisonment is no longer exposed to that sanction. Even the suspended committal orders referred to in the English authorities appear to have contemplated that the committal order lie in the Registry for a time after which the contemnor would not be exposed to the risk of committal.

At [57], the Court in Hughes also said:

57. … In our view the indefinite suspension of the balance of the term of imprisonment imposed upon Mr Hughes is not justified in the circumstances of this case. As stated above, it could rarely ever be justified. …
24. We agree. Lest the point be misunderstood, nothing said here brings into question the appropriateness of a coercive sentence of indefinite duration designed to compel a person to do something in the future when there is a reasonable prospect it will be done (Ascot Investments Pty Ltd and Harper (No. 3) (1982) FLC 91-253; Khademollah & Khademollah [2004] FamCA 26). Here, the primary judge accepted the submission of counsel for the respondent (recorded at [70]) that “… this is not a matter where the contempt can be purged given the nature of the contempt alleged and the state of the evidence …”. In other words, the appellant in this case was punished for past actions.
25. However, there was nothing the appellant could do to quell the sentence. We doubt that this was what the primary judge intended. Her Honour’s rationale for the indefinite suspension of the terms of imprisonment can be found at [78] of her reasons for judgment where she said:

The Respondent must understand that if he should lie to this Court or breach an order of this Court at any time in the future, he will serve the suspended custodial sentence in its entirety.

26. We discern that the primary judge intended to ensure that for the duration of the proceedings, the appellant was honest in his dealings with the Court and ensure, as best as possible, his compliance with such orders as may in the future be made in those proceedings. There is an obvious temporal nexus between the suspension and currency of the proceedings and compliance with any resultant orders. In this regard, her Honour understood that because the motor vehicle could not be located, the Court’s capacity to make an appropriate order for the settlement of property was to a very considerable extent reliant upon the appellant achieving a successful outcome in a claim for compensation currently before another court [80]. The primary judge had no way of knowing with any certainty when those proceedings would be finalised or how soon after they were, the property settlement proceedings could be concluded. Hence, the difficulty with fixing the term of the suspension.
27. Notwithstanding that difficulty, we consider that in suspending the term of imprisonment for an indefinite period, the primary judge fell into error and this ground has been established.

Re-sentence

28. In the event error was established, the appellant asked that we re-sentence. He argued that an appropriate sentence would be for the terms of imprisonment to be served concurrently and for those sentences to be suspended for 12 months commencing 12 August 2015. Nothing further was placed before us.
29. We have already explained that we would not interfere with her Honour’s imposition of consecutive terms of imprisonment. The breaches established in this case were wilful and flagrant and have had the effect of diminishing the pool of property available for distribution. Although others may have determined that it would have been appropriate for the appellant to serve part of the total sentence imposed, we can see no error in the exercise of her Honour’s discretion to suspend the sentence because of the appellant’s physical and mental health issues.
30. As to the term of suspension, we take into account that the sentence was imposed in August 2015. We would anticipate that the property settlement proceedings ought to be completed during 2017 and that any orders which impose obligations on the appellant, would require compliance by him during 2018. We agree with her Honour’s sentiments contained in [78] of her reasons and will impose conditions that require the appellant to comply with Order 5 made on 6 August 2015 and such other orders as may be made in proceedings between the parties under the Act.
31. On this basis the sentence will be suspended until 31 December 2018.