NSW Commissioner for Fair Trading v Rixon (No. 4)

1. [1]

   By Notice of Motion dated 3 March 2015 the Commissioner for Fair Trading seeks an order that the Defendant Matthew Geoffrey Rixon is guilty of contempt of court for having knowingly breached consent orders made on 14 April 2013, and an order that he has breached a good behaviour bond imposed upon him by this Court on 19 September 2014.

2. [2]

   On 13 June 2017 the Defendant signed a Statement of Agreed Facts with the Commissioner whereby he pleaded guilty to charges 3, 5, 6, 7 and 8 in the Statement of Charges. On 19 June 2017 when the proceedings came before me the Defendant confirmed that by his entry into the Statement of Agreed Facts he had pleaded guilty to those charges and did so in the knowledge that it was open to the Court to impose a criminal penalty on him.

Background

1. [3]

   At various times Mr Rixon had been carrying out residential building work as defined in the Home Building Act 1989 (NSW) without being licensed to do so. The Commissioner for Fair Trading sought injunctions against Mr Rixon to prevent him from so doing. Ultimately consent orders were made on 17 April 2013 in these terms:

2. [4]

   On 24 September 2013 the NSW Commissioner for Fair Trading by Notice of Motion filed that day sought an order against Mr Rixon that he was guilty of criminal contempt of this Court for having knowingly breached the consent orders made on 17 April 2013. That Notice of Motion came before Garling J. On 9 May 2014 Garling J made the following order:

3. [5]

   In the course of his judgment (Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431) Garling J said:

4. [6]

   There was no appearance for Mr Rixon at the hearing before Garling J. After judgment was given on the finding of contempt, the proceedings were adjourned for a sentence hearing. Mr Rixon appeared at the sentence hearing variously by counsel, by a solicitor and in person.

5. [7]

   On 19 September 2014 Garling J delivered judgment and imposed the following sentence on Mr Rixon (see Commissioner for Fair Trading v Rixon (No.3) [2014] NSWSC 1279):

6. [8]

   The Statement of Charges in the present Notice of Motion relevantly provides:

7. [9]

   The Statement of Agreed Facts signed by Mr Rixon provides:

8. [10]

   On the basis of Mr Rixon’s plea of guilty and his execution of the Agreed Statement of Facts the proceedings came before me for sentence. Although a hearing date was arranged to accommodate Mr Keller of counsel, who I was told on a number of occasions would be appearing for Mr Rixon, Mr Rixon ultimately appeared at the sentence proceedings for himself.

9. [11]

   The principal evidence at the hearing was the Agreed Statement of Facts. In addition, the Commissioner read a number of affidavits including affidavits of Mr Gibara, the owner of 105 St George Parade, Allawah, affidavits of two persons who carried out work at Mr Gibara’s property for Affordable Home Services, an affidavit from a bank officer in relation to cheques drawn on the ANZ Bank related to the work carried out and two affidavits from an investigator at the Commissioner’s office. Mr Sarginson of counsel accepted that he could not rely on any evidentiary material in these affidavits that was inconsistent with the Statement of Agreed Facts but said that the affidavits could be used to supplement those Agreed Facts.

10. [12]

    One affidavit read on behalf of the Commissioner was an affidavit from Simon Andrew Hunter who was a director of a company called Hunter Handyman Pty Ltd. The relevance of Mr Hunter’s affidavit was that the numbers appearing on documents for Affordable Home Services as an ABN and an ACN were in fact the ABN and ACN for Mr Hunter’s company Hunter Handyman Pty Ltd. Mr Hunter said in his affidavit that he had no knowledge of Affordable Home Services and he did not give any person permission to use those numbers on the Affordable Home Services’ documents.

11. [13]

    I consider that I should not have regard to any criminality identified in the information in Mr Hunter’s affidavit when considering the issue of any penalty for contempt by Mr Rixon. His contempt is not concerned with his use of somebody else’s ABN and ACN. Any wrongdoing relating to Affordable Home Services wrongly using another company’s ABN and ACN is a separate and distinct matter from the contempt for which Mr Rixon has pleaded guilty. That is not to say, however, that the use of the business name Affordable Home Services by Mr Rixon is not otherwise relevant in coming to a view about the appropriate sentence. Further, the use of the ABN and ACN is relevant to the planning involved in the offending.

12. [14]

    Mr Rixon did not require any of the deponents of the affidavits to be present for cross-examination.

13. [15]

    Mr Rixon swore no affidavits and led no evidence on the sentence proceedings.

14. [16]

    The only other evidence before the Court was a certified record and judgment of the District Court of Queensland setting out Mr Rixon’s criminal record in that jurisdiction, a certificate of conviction from the ACT Magistrate’s Court and the New South Wales police force criminal history for Mr Rixon.

15. [17]

    I had ordered a pre-sentence report from Community Corrections. That report contained nothing which could assist the Court apart from a statement that he had been assessed as suitable for a community service order and had signed an undertaking in that regard.

Submissions

1. [18]

   The Commissioner submitted that the contempt involved serious, wilful, conscious and deliberate contravention of the orders of the Court dated 29 April 2013 and that the Court could infer that the contempt was significantly more than inadvertent, technical or accidental. The Commissioner submitted that the Court would have regard to the fact that the contempt was committed within five months of the penalty imposed by Garling J and that it occurred during the period in which the Defendant was on a good behaviour bond and was subject to a community service order.

2. [19]

   The Commissioner submitted that the total sum of $10,000 accepted from Mr Gibara was significantly above the monetary threshold of work of $5,000 for the definition of “residential building work” under the Home Building Act and the Home Building Regulation 2014 (NSW). The Commissioner submitted that there was evidence that the Defendant had made no financial restitution to Mr Gibara, that there was no evidence that Mr Rixon was unlikely to reoffend or had good prospects of rehabilitation and that there was no evidence that he had shown insight or remorse regarding the contempt. The Commissioner submitted that Mr Rixon had significant criminal antecedents including antecedents in respect of offences involving dishonesty.

3. [20]

   Mr Rixon submitted that there was no deception in the advertisement placed because he did not intend by it to breach the home warranty laws. Mr Rixon submitted that he was employed to pull down a wall to the value of $1,000 and he was thereafter asked by Mr Gibara to install a fence for $4,000. He submitted that Mr Gibara then asked about earthmoving and three quotes were obtained. In that way he submitted that he became “the in-between person” and Mr Gibara gave him money to pay the operator of the machines for the earthworks.

4. [21]

   Mr Rixon submitted that the quote for $21,000 was given after the work was done which shows that he did not go out to seek home building work over the value of what was legally allowed.

5. [22]

   Mr Rixon submitted that his contempt was not deliberate. The work he perfomed was in a supervisory role only. He said that the only reason he breached the orders was by directing the earthmover and taking the payment from Mr Gibara to give to the operator of the machine. He said his breach was not thereby intentional.

6. [23]

   Mr Rixon submitted that it was not Mr Gibara who made the complaint about poor work. Rather, it was an employee, Mr Lloyd, who made the complaint.

7. [24]

   As to the timing of his plea, Mr Rixon said that there was only a short window to enter a plea before he became incarcerated in Queensland on remand for charges that subsequently appear on his Queensland criminal record. Mr Rixon said that at the directions hearing on 1 December 2015 by AVL he offered to plead guilty and asked if he could serve any custody period in Queensland while he was being held there on remand. He submitted that his plea of guilty was an acknowledgement of remorse for the offence as was his decision not to cross-examine the witnesses.

8. [25]

   Mr Rixon submitted that he had not committed any further offences since being dealt with in Queensland and released from custody. Mr Rixon said, in relation to his rehabilitation, that he had been working at the one place for over 12 months and that this was contained in a pre-sentence report.

9. [26]

   Mr Rixon submitted that his breaches in the present case were nowhere near as bad as what Garling J had to consider because of the way he went about trying to hide his involvement in those earlier breaches.

10. [27]

    Mr Rixon submitted that an appropriate penalty would be an Intensive Corrections Order because he would be supervised and such an order effectively made him his own gaoler. A fulltime prison sentence would “just set everything back” and would “totally diminish all rehabilitation prospects”.

Consideration

1. [28]

   Part 40.7 Uniform Civil Procedure Rules 2005 (NSW) relevantly provides:

2. [29]

   The orders made 17 April 2013 did not contain the notice referred to in r 40.7(3). It was for that reason that Garling J determined not to impose a sentence of imprisonment on Mr Rixon that would require him to serve that sentence by fulltime custody.

3. [30]

   Sub-rule (5) enables the Court to dispense with the requirement. However, that is a discretion not to be lightly exercised: Rixon (No. 3) at [11]-[24]; The Prothonotary of Supreme Court of New South Wales v Battye [2017] NSWSC 48 at [9].

4. [31]

   In the present matter, I consider that the discretion ought to be exercised. I do so because, not only did the reasons in Rixon (No. 3) make clear that, but for that omission, Mr Rixon would have been sentenced to fulltime custody, but also because, when Garling J delivered judgment, his Honour thereafter said this:

5. [32]

   I am satisfied that at least from the time Garling J delivered his reasons in Rixon (No. 3), Mr Rixon was fully aware of what Pt 40.7(3) sets out.

6. [33]

   In Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622 Rothman J said:

7. [34]

   In Rixon (No. 3) Garling J said at [21]:

8. [35]

   The first consideration is the seriousness of the contempt. By his agreement to plead guilty to five of the charges I find that Mr Rixon deliberately did the acts set out in the charges and did them knowing that they were in contravention of the orders that had been made in April 2013. He could not have been in any doubt that he was not permitted to do the things the subject of the charges because only five months earlier he had been convicted of contempt for performing similar acts in breach of the same orders. Although the advertisement placed by Affordable Home Services with which Mr Rixon was, clearly beyond doubt, significantly involved, was not in itself any breach of the orders, it has some significance for what thereafter happened.

9. [36]

   The evidence discloses that in response to the advertisement Mr Gibara rang both of the numbers quoted. He did not get an answer on the mobile phone number so he rang the landline. A woman answered the phone saying “Affordable Home and Garden Services”. When Mr Gibara asked to speak to the boss she asked for his number and said that they would call him.

10. [37]

    An hour or so later a man rang saying that Mr Gibara had rung his office, and asked what the man could do for Mr Gibara. Mr Gibara explained that he wanted a brick wall removed and, although being told over the phone it would cost about $500, Mr Gibara said he needed a proper quote. The man asked for Mr Gibara’s address. The following day a man turned up at the Allawah address and said he was Matt the builder. Mr Gibara showed him the damaged fence. Matt said it would cost “$21,000 for everything”. When he was asked what everything was, Matt said:

11. [38]

    He promised to complete the work by 10 February or at the worst by 12 February. Mr Gibara asked him to send a proper quote and he provided his email address for that purpose. The following day Matt and two other men came to his property and commenced the work.

12. [39]

    On 26 January he received an email from Affordable Home Services attaching a quote for $21,000. One minute later he received an invoice for $5,100 being for a deposit of $2,100 and a progress claim for $3,000. Despite the email being sent at 10:07pm payment was said to be due on that day.

13. [40]

    On 27 January Mr Gibara received another email which attached a document on the letterhead of Affordable Home Services entitled “Authority to proceed”. That document set out a payment schedule totalling $21,000.

14. [41]

    On 27 January Matt went out to the business premises of Mr Gibara and asked him for a deposit for $3,000. Mr Gibara wrote a cheque out payable to cash at the request of Matt.

15. [42]

    The work continued on a number of days from 28 January. On 3 February Matt said that he needed more money and Mr Gibara gave him $1,000 in cash.

16. [43]

    On 4 February Mr Gibara paid Matt a cheque for $2,000. Later the same day he gave another $2,000 to Matt in cash.

17. [44]

    On 6 February 2015 Mr Gibara asked where all the rest of the Colorbond and the posts were. Matt said that he needed “more money to go and pay them and they will deliver it”. Mr Gibara gave him a further cheque for $2,000 payable to cash. About half of the fence posts were installed on 7 February 2015. When nobody turned up on 9 February 2015 Mr Gibara rang Matt to ask when the job would be finished.

18. [45]

    On 10 February Mr Gibara received an email from Matt at Affordable Home Services asking Mr Gibara to deposit $4,000 into an account specified in the email. Shortly afterwards Mr Gibara received another quote from Affordable Home Services for $8,700 to supply and install a new Colorbond carport.

19. [46]

    On the same day he received another quote for $12,461 from Affordable Home Services for the demolition and removal of existing fence and the supply and installation of a new 1.8m high Colorbond fencing to the right hand side of the properties.

20. [47]

    Mr Gibara said that he never received the Colorbond material and posts for the fence and none of the concrete work was completed. He said he was never given a certificate of home warranty insurance.

21. [48]

    Other evidence in the affidavits demonstrates clearly that “Matt” with whom Mr Gibara dealt was Mr Rixon.

22. [49]

    I have set out this evidence only because the submissions made by Mr Rixon asserted a different arrangement which minimised his wrongdoing. I accept this evidence of Mr Gibara. It is consistent with the Agreed Facts and the plea to the charges by Mr Rixon. I reject the submissions made by Mr Rixon concerning what happened with Mr Gibara (paragraphs [20] and [21] above). I do so for three reasons.

23. [50]

    First, there was no challenge to Mr Gibara’s evidence. Secondly, Mr Rixon did not swear an affidavit or give evidence about the events. Rather, he simply made statements from the bar table upon which I can place no weight because they were not able to be challenged. Thirdly, Mr Rixon’s criminal record contains a large number of convictions for offences involving dishonesty. Of a total of 25 offences recorded in Queensland 18 of those offences were offences of dishonesty including forging and uttering, dishonestly obtaining a benefit or advantage, and falsely representing himself to be another person. Further, he was convicted in the ACT of two counts of being a person who represented himself to be a police officer. Whilst those matters would cause me to have difficulty accepting uncorroborated evidence from Mr Rixon if given on oath, I cannot in the circumstances accept statements that he makes from the bar table, particularly where he had the opportunity to give evidence on oath.

24. [51]

    I also reject Mr Rixon’s submission that the contempt was not deliberate (see [22] above). The submission is inconsistent with the plea to the charges which assert that he “knowingly” contravened the orders.

25. [52]

    It is also necessary to say something about Affordable Home Services. Affordable Home Services is a business name owned by a company called Sanza Accounting and Finance Pty Ltd. That company was deregistered on 4 February 2013. From the date of its incorporation on 15 September 2010 to its deregistration the secretary and director was one Jennifer Lynne Ernstzen. The evidence does not disclose what the relationship is between Ms Ernstzen and Mr Rixon. However, two things are clear. First, nobody owned the business name Affordable Home Services at the date of the events complained of in January and February 2015. Secondly, Mr Rixon’s response to a phone call by Mr Gibara to Affordable Home Services and his subsequent behaviour in sending quotes, emails and invoices using that name demonstrate that he was purporting to be the controller behind that business name.

26. [53]

    Two matters are significant in assessing the objective seriousness of the offending. The first is that, by his plea, Mr Rixon deliberately and knowingly breached the April 2013 orders for each of the acts contained in paragraphs 3, 5, 6, 7 and 8 of the Statement of Charges. Secondly, the orders were put in place for the purpose of protecting members of the public in accordance with the underlying intention of the Home Building Act, from unlicensed builders. The contempt, therefore, by breaching the orders not only undermines the authority and integrity of the Court but had the effect of injuring members of the public sought to be protected by the making of the orders designed to uphold the Home Building Act.

27. [54]

    I consider that the contempt in each case falls above the mid-range of seriousness.

28. [55]

    There are a number of matters which aggravate the seriousness of the offending in the present case. The first concerns planning. The offending involved the use of a business name that was not entitled to be used at the time and in circumstances where due searches would not have made a legal connection between the business name and Mr Rixon. It also involved the seeking out of the ABN and ACN of another company, which I find was to convey the impression that Affordable Home Services was a properly constituted business name. I do not, as noted earlier, take into account in that planning any criminality involved in the use of those numbers.

29. [56]

    Further, the offending took place over a number of days and in a number of separate acts in terms of quotes, invoices, the demand for and acceptance of various amounts of money.

30. [57]

    The offending is seriously aggravated by the fact that it took place whilst Mr Rixon was serving a suspended prison sentence and was on a good behaviour bond for the very same type of offending that he has now pleaded to committing. Moreover, the offences were committed within five months of the suspended prison sentence being imposed.

31. [58]

    Finally, the orders of April 2013 were made precisely because Mr Rixon was then acting in contravention of the Home Building Act in the same way that led to his being found guilty of contempt by Garling J and in the same way that has led to the present contempt findings. Put shortly, Mr Rixon is a serial offender.

32. [59]

    Since Mr Rixon placed no evidence before the Court, the only information I have about Mr Rixon, apart from his criminal history, is what Garling J said in Rixon (No 3) as follows:

33. [60]

    At the beginning of his submissions, Mr Rixon said this:

34. [61]

    When Mr Rixon appeared before Garling J on 26 June 2014 in the sentence proceedings for the first contempt, he said this:

35. [62]

    In the light of the apology Mr Rixon gave to Garling J, the apology he made to me rings hollow.

36. [63]

    Two other matters are relevant on the issue of remorse and rehabilitation. The first is that no recompense has been made to Mr Gibara. I do not consider that Mr Rixon has demonstrated any remorse, particularly bearing in mind the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Not only has he not made reparation to Mr Gibara but he has provided no evidence that he has accepted responsibility for his actions.

37. [64]

    That is somewhat borne out by the second matter. Since the contempt was committed in January and February 2015 Mr Rixon committed 24 of the 25 offences for which he was found guilty in Queensland. Those offences in the first place demonstrate a refusal on his part to obey the law. Further, as mentioned earlier, the majority of those offences were offences of dishonesty. The offending constituted by the contempt in the present case was not free of dishonesty by the unlawful use Mr Rixon made of the business name Affordable Home Services.

38. [65]

    Although Mr Rixon led no medical, psychological or psychiatric evidence to explain his offending generally and his continuing failure to comply with the orders of this Court, when that continuing failure and his other offending are considered I am left with the impression that there is an underlying problem which has not yet been identified and/or treated. Nevertheless, the only conclusion I can reach on the evidence is that I regard Mr Rixon’s prospects of rehabilitation as poor and the likelihood of reoffending as high. He informed me that he has not offended in the last 12 months. Even if I were to accept that that is true, given the extent of the offending in Queensland and the present contempt committed within five months of the sentence imposed by Garling J, I could not be satisfied that a period of 12 months free of offending means that Mr Rixon will not continue to offend.

39. [66]

    Specific deterrence and general deterrence are important considerations where a charge of contempt is concerned. In the present case specific deterrence looms large because this is the second occasion on which Mr Rixon is being dealt with for contempt of the same orders as a result of the same sort of conduct in breach of those orders. General deterrence is a significant matter in relation to contempt to emphasise the importance of obedience to Court orders, particularly where those Court orders are made for the benefit of members of the public as is the case here.

40. [67]

    I take into account in Mr Rixon’s favour the delay between the date of the offending and the time the sentence is being imposed: R v Todd [1982] 2 NSWLR 517 at 519. Whilst part of that delay was caused by his failure to comply with directions to serve evidence (see NSW Commissioner for Fair Trading v Rixon [2015] NSWSC 956), at least 12 months of the intervening period was occasioned by his incarceration in Queensland whilst on remand for the offences in respect of which he was ultimately convicted on 28 September 2016.

41. [68]

    Mr Rixon is entitled to a discount for the benefit of his plea. The parties were given leave to obtain a hearing date on 14 October 2016. At some little time after that date a hearing was appointed for 19 June 2017. That date was confirmed at directions on 3 March 2017. Some six days before the scheduled hearing date Mr Rixon pleaded guilty to the charges identified earlier in this judgment. Even allowing for the fact that Mr Rixon was incarcerated in Queensland for a 12 month period I do not consider the plea was entered at the earliest opportunity. I consider that there should be a discount of 10% for the utilitarian value of the plea.

Penalty

1. [69]

   Mr Rixon has pleaded guilty to committing a contempt of court in the five ways set out in Charges 3,5,6,7 and 8. The acts constituting those charges was one course of conduct but carried out over a period of two weeks. I intend to impose a single penalty for the acts constituting those charges.

2. [70]

   In the circumstances of this case, I am satisfied that no other penalty than a period of imprisonment is called for. I consider that the period to which Mr Rixon should be sentenced is a period of 18 months. In reaching that conclusion I take into account that Mr Rixon was not required to serve any part of his earlier sentence of imprisonment in custody although he breached the terms of that suspended sentence by his present contempt.

3. [71]

   Mr Rixon submitted that it would be appropriate if any sentence was served by way of an Intensive Corrections Order. I do not agree. Mr Rixon was given the opportunity on the last occasion of serving a sentence of imprisonment in the community on the condition that he be of good behaviour. Not only was he not of good behaviour but he breached the same orders and did so in contempt of this Court within five months of being sentenced and having been warned that he would face a fulltime custodial sentence if he did not comply with the sentence imposed. Moreover, as Garling J made clear in Rixon (No 3) at [79], he was spared a fulltime custodial sentence on the earlier occasion only by reason of the fact that the required notice under r 40.7 was not attached to the orders served.

4. [72]

   I find special circumstances because I consider that Mr Rixon needs assistance in rehabilitation to deal with his continued offending and a longer period on parole is likely to further that end. In the circumstances I consider that he should be sentenced to a period of imprisonment of 18 months with a non-parole period of 12 months.

5. [73]

   This sentence was scheduled to be imposed on 12 January 2018. Despite having been advised of that date Mr Rixon did not appear in court. I issued a bench warrant for his apprehension. That warrant was only able to be executed on 14 February 2018 when he was arrested in Queensland. Having been extradited to New South Wales he was brought before Wilson J who remanded him to today. Accordingly, the sentence will commence on 14 February 2018 with the non-parole period expiring 13 February 2019 and the balance of term expiring 13 August 2019.

6. [74]

   I make the following orders:

   1. (1)

      The Defendant, Matthew Geoffrey Rixon, is convicted of contempt of court.

   2. (2)

      The Defendant is sentenced to a term of imprisonment of 18 months commencing 14 February 2018 and expiring 13 August 2019 with a non-parole period of 12 months expiring 13 February 2019.

   3. (3)

      The Defendant is to pay the Plaintiff’s costs of the proceedings on an indemnity basis.