(Australia) Pty Limited v Rutkowski [2018] NSWSC 19

Judgment Summary Supreme Court New South Wales

Scholefield Goodman (Australia) Pty Limited v Rutkowski [2018] NSWSC 19 Rothman J The Supreme Court has indicated that it will sentence Sigmund Rutkowski to 96 hours of community service pending an expected favourable Community Service Order Assessment. The sentence follows a plea of guilty by the defendant to 2 counts of contempt and includes a 20% discount for such a plea. On 2 April 2014 the District Court issued an asset freezing order in which assets to the value of $600,000 were to remain unencumbered. A disclosure order was also issued requiring the defendant to swear and serve on the plaintiff an affidavit detailing his assets and liabilities in Australia. The first charge relates to the breach of the asset freezing order. Namely, the defendant disbursed of the great majority of his assets to an amount well below $600,000. The second charge arises from the defendant’s failure swear and serve on the plaintiff an affidavit detailing his assets and liabilities in Australia within the prescribed time and, indeed, after the first charge had been committed. In determining the sentence, a key issue for the Court was determining whether the defendant’s conduct constituted criminal or civil contempt. The Court found that the first charge of contempt constituted criminal contempt, as it represented a deliberate and contumacious breach of the District Court’s order and was intended to deprive the plaintiff of the possibility of obtaining satisfaction from the District Court judgment that was ultimately entered. As to the second charge, while the Court suspected and considered it, on the balance of probabilities, to be a deliberate and contumacious contempt, the plaintiff had failed to discharge the burden beyond a reasonable doubt. For this reason, the second charge was considered civil, and not a criminal, contempt. In deciding on the form of punishment the Court considered a number of factors. Significantly, in this case there was a definite victim who had been deliberately prejudiced, and that the loss and damage suffered by them was substantial. The offence was also premeditated in nature. Besides this, the defendant was otherwise of good character and had demonstrated remorse by his guilty plea. In the circumstances, the Court also acknowledged that a fine would be impractical considering the defendant’s now limited resources, while a bond would insufficiently punish

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 plaintiff. Finally, the Court recognised that a custodial sentence should not be imposed unless no other alternative is appropriate. In view of all of the above, the Court concluded that a community service order, pursuant to s 8 of the Crimes (Sentencing Procedure) Act, represented the most appropriate form of punishment

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.