Harvey v Henderson (No 4)

1. [1]

   HIS HONOUR: In accordance with the rules, the plaintiff/prosecutor, Laurae (Rae) Harvey, moved on a notice of motion, supported by an affidavit, that the Court find the defendant, Gary Henderson, guilty of three charges of contempt. The charges were filed with the notice of motion and affidavit.

2. [2]

   On 17 July 2025, the Court found the defendant guilty of each of the three charges of contempt in that, on three separate occasions and in relation to three separate publications, the defendant breached orders of the Court made on 17 September 2021.

3. [3]

   The judgment determining the guilt of the defendant issued on 17 July 2025 (hereinafter “the Verdict Judgment”) and the orders made were as follows:

4. [4]

   Arising from the terms of order (5) and having heard the parties on penalty at a hearing on 19 September 2025, the Court is required to determine an appropriate penalty, if any, and impose a penalty on the defendant.

5. [5]

   The substantive proceedings, which gave rise to the interlocutory orders of which the defendant is in breach, were proceedings for defamation. The plaintiff sued the defendant and his partner for damages arising out of publications by one or other or both of the said defendants relating to the same or very similar subject matter. The Court, as presently constituted, dealt to finality with the substantive claim and judgment issued in the defamation proceedings on 12 June 2025. [2]

6. [6]

   The orders of which the defendant was in breach, issued by the Court on 17 September 2021, were made by Sackar J and restrained the defendants, being the defendant in these contempt proceedings and his partner, pending the hearing of the matter, from publishing any matter conveying the same or substantially similar imputations to the publications complained of. The orders of Sackar J were made by consent. The consent orders resolved an interlocutory dispute before the Court.

7. [7]

   The circumstances of the contempt proceedings were summarised in the Verdict Judgment and, save as to the extent that it is necessary to highlight a particular matter for the purpose of understanding these reasons, it is unnecessary to repeat those facts. It is sufficient, at this preliminary stage, to note that despite the orders of the Court made by consent of the defendant restraining publication of the same or similar imputations, the defendant published three publications with the same or similar imputations as pleaded in the substantive proceedings and restrained by the consent orders.

8. [8]

   On 21 August 2024, the defendant published on Facebook Messenger a message to the Wandandian Macropod Rescue and Rehabilitation Centre that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.

9. [9]

   Next, between 2 October 2024 and 8 October 2024, the defendant published on a public Facebook page, being the Cobargo/Bermagui Notice Board, matters that conveyed the same or substantially similar imputations as claimed in the substantive proceedings. Lastly, on 2 October 2024, continuing at least at the time of the hearing of the contempt proceedings, the defendant published on a public Facebook page, Beware of Wild2Free, the same or substantially similar imputations as were the subject of complaint in the substantive proceedings.

10. [10]

    Essentially, the imputations that were repeated, contrary to the orders of Sackar J, were that the plaintiff had misappropriated funds or was involved in fraud and that the plaintiff had carried on the charity Wild2Free and other activities in animal care for the plaintiff’s own personal benefit and/or for the purpose of obtaining funds for herself.

11. [11]

    As noted in the Verdict Judgment, the defendant accepted that each of the charged publications were published by him. His defence was based upon the assertion that he had requested information from Wild2Free and had not been provided with it. The defendant asserted that, when the plaintiff sought to relist the matter as a consequence of the issue about documents, he took time “to read the Court order from 17 September 2021” and took the view that the restraint issued by order of the Court was in place only until the hearing of the defamation matter, which the defendant argued was until the beginning of the hearing.

12. [12]

    In the Verdict Judgment, the Court held that the terms of the restraint applied until judgment issued determining the controversy between the parties.

13. [13]

    The defendant did not give evidence in the sentence proceedings and has not given evidence on remorse, rehabilitation or motive. On sentence, the defendant was represented by a legal representative. The affidavit evidence in the contempt proceeding was relevantly confined to the understanding of the defendant of the effect of the order and to some conduct that was suggested minimally sought to purge some of the contempt.

Punishment for contempt

1. [14]

   Rule 13 in Part 55 of the Supreme Court Rules 1970 confers a power on the Court to impose a penalty for contempt. The rule is in the following terms:

2. [15]

   There are historically two types of contempt: civil and criminal. Civil contempt is, in essence, breach of a Court order or undertaking, while criminal contempt is conduct that obstructs the administration of justice. The taxonomy of the types of contempt was discussed by the High Court, which said:

3. [16]

   Historically, penalties were imposed for civil contempt for the purpose of enforcing or remedying a right or interest of a party and were not imposed for the purposes of punishment. [4] On the other hand, punishment for criminal contempt was, as is obvious from the expression, punitive in nature.

4. [17]

   Each species of contempt may impact the administration of justice and, potentially, undermine the authority of the justice system. Where the breach of a Court order or undertaking to a Court, which would ordinarily amount to civil contempt, is deliberate or intentional and involves a deliberate defiance or contumacious breach of the order or undertaking, it is considered to be criminal in nature. [5]

5. [18]

   It may well be that a wilful, deliberate or intentional disobedience of a Court order may be characterised as both civil and criminal conduct. [6] In order for a breach of an order of the Court to be a criminal contempt, the breach must be contumacious. [7]

6. [19]

   The purpose of imposing a punishment for wilful disobedience of a Court order is to discipline the offender and to vindicate the authority of the Court. [8] In fixing a penalty, the principles relating to sentencing apply. Contempt is a common law offence, at least to the extent that it is criminal contempt. But the same principles apply in fixing a penalty for civil contempt. Hereinafter the Court will generally refer only to offence and sentence and thereby include both civil and criminal contempt and the fixing of a penalty.

7. [20]

   Sentencing, and the fixing of a penalty, is a process of intuitive synthesis in which the judicial officer imposes a sentence or penalty that is appropriate to the objective seriousness of the offence that was committed and to the circumstances of the offender who committed it.

8. [21]

   The purposes of sentencing, under the common law, include the protection of society; general deterrence; specific deterrence; retribution and reform. The High Court described the purposes of sentencing in the following well known passage:

9. [22]

   Because contempt is a common law offence, the discretion reposed in the Court in fixing a sentence is broad. The Court has available to it all of the kinds of sentences which the legislature has made available for statutory offences under the Crimes (Sentencing Procedure) Act 1999 (NSW). Further, there is no maximum or minimum sentence or standard non-parole period each of which, if prescribed, would be a further guidepost to the fixing of an appropriate sentence.

10. [23]

    Nevertheless, the sentence to be set and imposed should have regard to the seriousness of the contempt compared with contempt of a like kind that could have been committed and sentences that have been imposed in relation to them. The Court looks at the range of conduct that would give rise to an offence of the kind charged and determines where in that range of conduct the particular offender’s conduct falls. In so doing, the Court determines the objective seriousness of the conduct within the range of conduct that gives rise to such an offence.

11. [24]

    Sentencing is, as earlier expressed, a process of intuitive synthesis in which the judicial officer considers the objective seriousness of the offending and the subjective circumstances of the offender and seeks to synthesize those aspects to arrive at an appropriate sentence. An appropriate sentence is one which, in the exercise of discretion of the sentencing judge, achieves the purposes of sentencing.

12. [25]

    As is clear from the passage extracted from Veen (No 2) above, the purposes of sentencing may often be conflicting and, almost always, pull in different directions. The purposes overlap and the Court seeks to utilise its expertise in imposing a sentence that achieves the objects or purposes described.

13. [26]

    The process is neither logical nor mathematical. The process requires the assessment and weighing of each of the objective and subjective circumstances in order to achieve an appropriate sentence that fulfills the purposes already described.

14. [27]

    There are differences between the imposition of a civil penalty, if the contempt be a civil contempt, and the imposition of a sentence for criminal contempt. Criminal contempt is a common law criminal offence and the circumstance that a person may be convicted of a criminal offence is, in and of itself, a punishment, even where there is to be no imposition of a monetary penalty or other sentence.

Objective circumstances

1. [28]

   The Court has set out the circumstances of the breach of the orders of Sackar J in the Verdict Judgment. It is unnecessary to repeat that analysis.

2. [29]

   As stated already, the defendant did not give evidence on sentence. Nor in the contempt proceedings did the defendant adduce substantive relevant evidence which satisfied the Court. I am not satisfied, even on the balance of probabilities, that the defendant genuinely believed he was entitled to publish the imputations in the publications which gave rise to the charges and offences. The submission that the orders issued by Sackar J expired at the commencement of the substantive hearing has all the hallmarks of an ex post facto artificial attempt at justification for the conduct in question.

3. [30]

   There can be no doubt that the conduct in question was deliberate and, in the absence of a genuine belief that there was an entitlement to publish the documents, an intentional breach of the orders. No explanation has been given that is either reasonable or acceptable.

4. [31]

   The orders were made by the Court on 17 September 2021, by consent of the parties, in order to ameliorate the tension between the parties and to resolve, at least on a temporary basis, the controversy between them. In those circumstances, a deliberate, intentional and/or contumacious breach of the orders, without a reasonable excuse, undermines the administration of justice and the authority of the Court and puts in jeopardy the process by which parties seek to resolve, on a temporary or permanent basis, the issues between them.

5. [32]

   While I consider the breach serious, I consider that, in the scheme of contempt, it is at the low end of the range of conduct that could give rise to a contempt, whether criminal or civil.

Subjective circumstances

1. [33]

   As stated, the defendant has not, on sentence, given evidence. There is no suggestion of any issue affecting the defendant’s freewill or capacity.

2. [34]

   There is not even a suggestion that the defendant forgot about the orders issued by Sackar J. Nor has there been a serious attempt to purge the contempt fully.

3. [35]

   The three publications which gave rise to the offences of contempt were publications that formed part of a campaign in which the defendant, and at an earlier time his wife, sought to vilify the plaintiff as a result of that which they considered inappropriate conduct by the plaintiff. These matters are the subject of comment in the principal judgment on the substantive issues.

4. [36]

   I do not consider that the defendant has shown any remorse. While he has admitted to the publication of the documents that gave rise to the charge, he maintained his innocence and sought to excuse his conduct by a process which sought to rely on that which the defendant thought could be argued as a different interpretation of an order of the Court. The offender has a previous conviction, but it does not relate to an offence of this kind, and I do not consider it relevant either to objective seriousness or the subjective circumstances of the defendant.

5. [37]

   I do however consider that the conduct of the defendant caused or exacerbated the emotional harm which had been inflicted on the plaintiff by the continuous publication of offensive material and imputations that were not true.

6. [38]

   Having made the comment about previous criminal conduct, I do not consider that the defendant’s prior offence gives rise to a need for a greater degree of specific deterrence.

7. [39]

   Specific deterrence is a highly relevant factor in the fixing of an appropriate penalty in these proceedings. However, the specific deterrence arises from the continuing nature of the publication of material and the circulation of it publicly, despite the making of orders by the Court.

8. [40]

   Otherwise, I accept that the defendant is a person of good character generally but, as should be obvious from the immediately preceding comment, I consider that without appropriate specific deterrence, the defendant is likely to re-offend.

9. [41]

   It is obvious from the circumstances of these proceedings and the conduct of the defendant that the plaintiff has been caused serious distress. Yet, it is obvious that the defendant is oblivious to it.

Penalty

1. [42]

   The Court has recited, very briefly and perfunctorily, the principles relevant to the sentencing and the objective seriousness of the conduct. There is little by way of subjective circumstances to ameliorate the imposition of condign punishment.

2. [43]

   The Court has been provided with material relating to the property holdings, or some of them, known to the plaintiff and owned by the defendant, or the defendant and his spouse. The defendant is not without assets, but those assets need the following qualifications.

3. [44]

   First, they are assets relating to real estate and are not readily realisable. Secondly, the real estate is being utilised for the care of native animals and not, it seems, for profit. It would not serve society any good to have that property encumbered as a consequence of any penalty imposed by the Court now.

4. [45]

   As earlier stated, the defendant has a criminal history, but it is extremely minor. He was convicted of common assault in 2021 for which the Local Court imposed a conditional release order without conviction.

5. [46]

   The learned Chief Justice, when President of the Court of Appeal, summarised the principles relative to sentencing when dealing with contempt of Court. [10] As already stated, the underlying purpose is to protect the administration of justice. In that respect, general deterrence is always a significant aspect.

6. [47]

   The conduct in this case, in the view that the Court takes, is that the defendant has consciously defied the authority of the Court, exercised by Sackar J, even though the target of the conduct was not the Court nor the administration of justice but the continuing campaign against the plaintiff.

7. [48]

   I continue to take the view, as expressed during the course of the proceedings, that the punishment in this matter should not be a term of imprisonment. A term of imprisonment for any offence is a penalty of last resort. [11]

8. [49]

   I take into account in fixing a sentence my assessment of the seriousness of the contempt and the culpability of the defendant together with his reason or motive for the contempt, which I consider is a continuation of the campaign which gave rise to the substantive proceedings for defamation. I do not consider that the defendant has received any benefit or gain from the contempt, other than the somewhat perverse aim of the continuation of the campaign otherwise waged. As already stated, there has been no genuine contrition, there are no relevant antecedents, and I have been provided with no personal circumstances which ameliorate any sentence that might be imposed.

9. [50]

   I reiterate that there is a need for both significant general deterrence and even more significant specific deterrence. [12]

10. [51]

    The three charges deal with the publication of three separate publications. Nevertheless, applying, as I must, the principle of totality, I consider that the three publications arise from the one course of conduct, even though they are separate acts.

11. [52]

    I consider that each of the acts would warrant a fine and I shall impose a fine. I consider that each of the acts giving rise to a charge should be punished equally. I would ordinarily impose a fine for each of the acts of $5,000 each. Applying the principle of totality, I impose an aggregate sentence for the three contempt offences of $10,000.

12. [53]

    Lastly, the Court deals with the question of costs. The plaintiff does not seek moiety of any penalty imposed. However, the plaintiff has taken proceedings which have the dual effect of enforcing an order that protects the plaintiff from the publication of defamatory material and also enforces the orders of the Court and protects the administration of justice.

13. [54]

    The discretion to order costs must be exercised judicially. [13] It does not involve punishment. However, where there is a relevant delinquency in the manner in which proceedings have been taken or the process utilised in the Court, indemnity costs are available.

14. [55]

    In the substantive defamation proceedings, indemnity costs were ordered, and the contempt proceedings are part of the justiciable controversy. Of itself, such a factor renders these circumstances unusual.

15. [56]

    In my view, given the importance of the protection of the administration of justice and the circumstance that the process of the whole justiciable controversy involves a relevant delinquency in that the defendant has deliberately and wilfully disobeyed an order of the Court, indemnity costs, being a full compensation for that which is reasonably incurred, is the appropriate and just compensation for the plaintiff.

16. [57]

    The Court makes the following orders:

    1. (1)

       The Court finds the defendant, Gary Henderson, guilty of contempt of Court as outlined in the previous judgment of the Court.

    2. (2)

       The Court records each of those convictions.

    3. (3)

       The Court fines the defendant, Gary Henderson, a total of $10,000 payable forthwith.

    4. (4)

       The defendant shall pay the plaintiff’s costs of and incidental to the contempt and sentencing proceedings on an indemnity basis.