Ms Smith was found guilty of contempt of Court on 2 February 2015 in ... thwart the plaintiff's attempts to obtain damag
Judgment Summary Supreme Court New South Wales
Young v Smith (No 4) [2017] NSWSC 1443 Rothman J The Supreme Court has sentenced Josephine Smith, following a conviction of contempt, to six months imprisonment, suspending the sentence on the basis of a good behaviour bond being entered into. The Court also imposed a fine of $50,000 in addition to the sentence of imprisonment and ordered Ms Smith to pay the costs of Ms Young. Ms Smith was found guilty of contempt of Court on 2 February 2015 in circumstances where Ms Smith placed a mortgage over property located in Pyrmont in favour of Westpac Bank following the Court restraining such conduct. The Court categorised the contempt as both civil and criminal in nature. Ms Smith was aware of the orders which were imposed in relation to the property. The Court found that the contempt was well above the mid-range of objective seriousness, noting that it was not in the least, technical, it was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her. The Court noted that the overwhelming inference was that the scheme was designed to thwart the plaintiff’s attempts to obtain damages from Mr Young, including the transfer of the property to ensure that Mr Young had no assets in his name to which the judgment debt could attach, and involved breach of orders for the purpose of obtaining a business or commercial advantage. The Court accepts that Ms Smith has a significant medical and psycho-social history, following evidence adduced through numerous reports, including from a clinical psychotherapist, an endocrinologist, consultant physicians and a general practitioner. The Court accepts that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt. The Court also took into account the fact that Ms Smith had no criminal history, nor has she been charged with a criminal offence. As a consequence of Ms Smith’s medical conditions, including mental health conditions and restricted mobility, general and specific deterrence are less significant than might otherwise have been appropriate, however some general and specific deterrence is required. The Court found that the fact that the business, for which Ms Smith borrowed the money, did not succeed is a matter wholly unrelated to the contempt and that there has been no public expression of contrition or apology on the part of Ms Smith. The Court further found that the publicity as a result of the conduct of Ms Smith was not extra curial punishment, but was the natural result of conduct by a person in utter defiance of the order of a Court. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
The Court found that, notwithstanding the subjective circumstances of Ms Smith, bearing in mind the objective and subjective circumstances of the offence, a custodial sentence is warranted and that the only proper disincentive to other persons seeking to obtain a profit by deliberate defiance of Court orders is to impose a monetary penalty. The Court recorded the conviction against Ms Smith for the offence of contempt and sentenced her to a fixed term of six months’ imprisonment. The Court suspended the execution of the sentence, directing Ms Smith to be released from custody on the condition that she enter into a good behaviour bond for six months. The Court also imposed a fine of $50,000 and ordered Ms Smith to pay Ms Young’s costs.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
