Commissioner for Fair Trading v Matthew Geoffrey Rixon (No. 5)

By Notice of Motion dated 24 May 2019, the NSW Commissioner for Fair Trading (“the plaintiff”) seeks an order that Matthew Geoffrey Rixon (“the defendant”) is guilty of contempt of court on the basis that he knowingly breached consent orders made by this Court on 17 April 2013.

On 29 November 2021, the defendant pleaded guilty to 18 acts of contempt as set out in the Statement of Charges. The defendant is to be sentenced in accordance with an Agreed Statement of Facts (“ASOF”).

The background to the matter is as follows. On 17 April 2013, this Court entered a consent judgment against the defendant in proceedings 2012/39299. The consent judgment was signed by the solicitor for the plaintiff and the defendant himself.

The consent judgment contained injunctive orders that prohibited the defendant from being directly or indirectly involved in, in general terms, unlicensed residential building work within the meaning of the Home Building Act 1989 (NSW) (“the Act”). The specifics of the orders included prohibitions on the defendant, in any capacity, quoting for, contracting to perform, performing, requesting or accepting payment for the performance or proposed performance of such work (including doing so through others including through a company or other agency). As a consequence of the definition of residential building work under the Act, the defendant is prohibited from doing any of those things with respect to work of a value of $5000 or more.

The orders also prohibits the defendant from contravening various provisions of the Australian Consumer Law, in particular s 36, which requires that a condition upon accepting payment or consideration for any building work is that the defendant, or an entity through which he is working, must have reasonable grounds for believing that the services are able to be provided within the time specified in the agreement, or else within a reasonable time.

The orders were sought following a claim by the plaintiff that the defendant had been engaging in residential building work without a licence.

The defendant has failed to comply with the Court orders on two previous occasions. On 9 May 2014, the defendant was found guilty by Garling J of 24 acts of contempt (Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431 (“Rixon (No. 2)”)) He was sentenced in relation to these matters on 19 September 2014 (Commissioner for Fair Trading v Rixon (No. 3) [2014] NSWSC 1279 (“Rixon (No. 3)”)). On 2 March 2018, the defendant was sentenced by Davies J with respect to five charges of contempt (NSW Commissioner for Fair Trading v Rixon (No. 4) [2018] NSWSC 1 (“Rixon (No. 4)”)). The matters dealt with by Garling J and Davies J are discussed further, below.

Notwithstanding the orders made by consent in April 2013, five months later on 24 September 2013, the plaintiff sought an order that the defendant was guilty of contempt court for knowingly breaching the consent orders.

On 9 May 2014, Garling J found the defendant breached the Court’s orders in 24 different respects in relation to work conducted at five different properties. In Rixon (No. 2), Garling J made the following findings in relation to these breaches:

His Honour described the conduct involved in the contempt as “extensive, persistent and very serious” and found that it was “deliberate and intentional, and done with knowledge of the Court’s orders”: Rixon (No. 3) at [32], [64]. Garling J noted that the “significant and ongoing breach” of the orders across a period of time suggested there was a “real need for specific deterrence”. His Honour (at [81]) also regarded general deterrence as important, given the nature of the conduct.

The defendant was sentenced to a term of imprisonment for a period of 18 months commencing on 19 September 2014 and concluding on 18 March 2016. The term of imprisonment was suspended subject to conditions that (a) the defendant be of good behaviour for that period; (b) throughout the period the defendant comply with the orders made by the Court on 17 April 2013; and (c) the defendant perform 300 hours of community service. The defendant was also ordered to pay the plaintiff’s costs on an indemnity basis. To date, these costs remain unpaid.

His Honour declined to impose an immediate term of imprisonment as r 40.7(3) of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) had not been complied with. His Honour did, however, state that if the defendant had been on clear notice of the risk that a breach of the orders may result in him being sent to gaol, he “would have no hesitation in imposing a term of imprisonment upon him” (at [79]).

Within five months of the sentence imposed by Garling J, the defendant committed a further five acts of contempt of court. The acts constituting those charges were one course of conduct carried out over a period of two weeks. The defendant pleaded guilty before Davies J.

In sentencing the defendant, Davies J (at [53]) noted the following about the nature of the orders:

Davies J found that the contempt in each case fell above the mid-range of objective seriousness. His Honour stated at [58]:

Davies J found the defendant’s prospects of rehabilitation were poor and the likelihood of reoffending was high. His Honour was satisfied that no penalty other than a period of imprisonment was appropriate. While the orders did not contain the notice referred to in r 40.7(3), his Honour exercised the discretion to dispense with the requirement pursuant to sub-rule (5), for the reasons given at [30]-[32] of his Honour’s judgment.

Davies J imposed a sentence of 18 months imprisonment with a non-parole period of 12 months. His Honour made a finding of special circumstances on the basis that the defendant needed assistance in rehabilitation to deal with his continued offending.

The defendant failed to appear on the date of sentence and Davies J issued a bench warrant for his apprehension. He was arrested in Queensland and brought before the Court. The sentence commenced on 14 February 2018 and expired on 13 August 2019. The non-parole period expired on 13 February 2019. The defendant was also ordered to pay the plaintiff’s costs of the proceedings on an indemnity basis. These costs also remain unpaid.

The charges in the present Notice of Motion relate to fencing work at five separate residential premises:

In relation to each of the above properties there was a charge of providing a quotation, requesting and accepting payment and entering into a contract with respect to building work. Additionally, in relation to 18 Campbell Street there was a second charge of requesting and accepting payment. In relation to 9 Pringle Avenue, and 5 Wanda Road there was a charge, in each case, of performing building work, bringing the total number of charges to 18. The particulars of the charges are made apparent in the ASOF which is set out below.

I set out below relevant parts of the ASOF signed by the defendant. The persons contracting with the defendant have, in each instance been referred to as “the customer”.

In determining the plaintiff’s motion, I am not dealing with proceedings for a criminal offence but rather, I am exercising the civil jurisdiction of the Court: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [57]; He v Sun (2021) 104 NSWLR 518; (2021) NSWCA 95 at [62].

As explained in Dowling, the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply. (It might be noted that Dowling clarified the law in this regard. The orders of Garling J and Davies J, which pre-dated Dowling, were in accordance with then binding authority.) Part 55, r 13 of the Supreme Court Rules 1970 (NSW) does apply. It provides as follows:

It is consequently clear from the above that, despite the non-application of the Crimes (Sentencing Procedure) Act, alternatives to full-time imprisonment are available as part of the power to punish an individual for contempt. That said, in the present case, the defendant accepted that having regard to the contempt and the defendant’s history, there is, as a practical matter, no alternative to a sentence of imprisonment.

While the function of dealing with a person for contempt in civil proceedings nonetheless has much in common with the sentencing task in criminal proceedings, it remains the case that the court is exercising different powers serving different purposes: He v Sun at [63] per McCallum JA. The underlying rationale of every exercise of the contempt power is the necessity to “uphold and protect the effective administration of justice”: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46; He v Sun at [10].

In assessing the seriousness of a contempt, Ward CJ in Eq, in the first instance proceedings in He v Sun - Sun v He (No 2) [2020] NSWSC 1298 noted (at [87) that the matters of primary relevance in assessing the seriousness of the offence are:

Her Honour’s observations in this regard were not the subject of challenge in the Court of Appeal. See also Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 per Kirby P at 314.

In determining the punishment for contempt, I note that there is no maximum penalty. While the process is not one involving sentencing for a criminal offence, at least some analogous principles have application: Hawkesbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55 at [126]. In the present case the parties agreed that principles such as those in relation to discounts for pleas of guilty, totality, delay and custodial conditions have relevance, although the manner in which those matters impact on the sentence was disputed.

It is necessary for me to have regard to the objective seriousness of the offending and to do so against the above principles.

The background to the offending as set out above is relevant. In short, orders having been made against him in April 2013, the defendant was found by Garling J to be in breach some five months after those orders were made. On that occasion the plaintiff’s failure to comply with r 40.7(3) of the UCPR saved the defendant from a term of immediate imprisonment. That process was clearly sufficient to put the defendant on notice that any breach of the orders was likely to result in a term of imprisonment. Despite that, five months after the sentence imposed by Garling J, the defendant was again in contempt. As noted above, Davies J imposed a sentence of imprisonment of 18 months with a non-parole period of 12 months commencing on 14 February 2018. That non-parole period did not expire until 13 February 2019. The defendant was however released on 14 August 2018 after serving only six months of the non-parole period. This, the Court was told, was the result of his participation in what was then a pilot program which apparently allowed him to serve out the balance of his non-parole period in the community while subject to supervision, including electronic monitoring by way of an ankle bracelet. The conduct constituting the contempt in the present matter was committed between 15 October 2018 and 31 January 2019. The entirety of that conduct therefore occurred whilst the defendant was serving his non-parole period.

The nature of the program allowing the defendant to serve his non-parole period in the community was not elucidated beyond what has been said above. While in all likelihood it was a form of conditional liberty, I am not here concerned with issues such as might arise pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act. While a breach of conditional liberty in sentencing for a criminal offence is a matter adverse to the defendant on sentence, it will not usually increase the objective seriousness of the offending. Here the situation is different. In this matter, in assessing the seriousness of the contempt and the need to “uphold and protect the effective administration of justice” it is significant that the conduct was engaged in at such a time despite the previous sentences. In short, it demonstrates a particularly flagrant disregard for the authority of the Court.

With respect to the conduct itself, the defendant engaged in five different building projects. In each case he breached the orders by providing quotations, requesting and accepting payment, and entering into a contract, although it might be noted that this last matter was not a separate act but rather the consequence of the request for, and acceptance of, payment. In addition, in relation to X Pringle Avenue, Belrose and XX Campbell Street, Eastwood, the defendant further breached the order by engaging in building work. The result in each case was either that there was payment made and not recovered for work that was never done, or payment made for work that was only partially, and inadequately, done. It is a matter of some irony that performance of building work resulted in further charges, at least from the perspective of those who paid money and had no work done. This Court is, however, dealing with contempt by the breaching of orders, not for the failure to do contracted work.

The conduct was engaged in for financial gain. The defendant put his personal interest above any need to obey the order of this Court. There was a degree of sophistication in the conduct in that he established a holding company and a subsidiary company in order to distance himself from the activity. In this regard the conduct was remarkably similar to that dealt with by Garling J, who found that the defendant created a “network of companies” so that his connection with the companies would not be obvious in the absence of proper investigation, which supported his Honour’s view that the defendant intentionally set out to avoid the consequences of the Court’s orders: see Rixon (No. 2) at [149]-[150] set out above at [9]).

I am unable to find there is any genuine contrition on the part of the defendant. While the defendant acknowledged to the author of the sentencing assessment report, and in his evidence, that his behaviour was unlawful, there was no apology to the Court. In fairness, given the history, it is difficult to see how any apology, had it been given, could be given any weight.

Further, the defendant in my view, tended to minimise his conduct. ln his evidence he sought to distance himself from the offending by suggesting that his contact with customers was minimal and the breach was, effectively, the result of failing to properly supervise other workers. He suggested that his intention was to engage in work but to remain under the $5000 limit. However, the defendant was the sole director and was therefore responsible for the conduct of CDA Corporation Pty Ltd, which was the holding company of CDA. The agreed facts make clear he was “responsible for and directed and controlled the activities of CDA”. Having regard to his role his criminality is not reduced as a result of a lack of direct involvement in the various jobs. In any event, the agreed facts also make plain that the defendant had significant direct involvement in conduct which was clearly in breach of the orders and which must have been known by him to be in breach of the orders.

It is true that, given the relevant definition of residential building work as involving work with a value of $5000 or more, he was free to do work with a value less than that amount. It is also true that, given this, it is easy to imagine breaches committed as a result of work initially estimated to be less than that amount but which, due to unforeseen circumstances, ends up slightly exceeding that amount. Such a breach would be at the lower end of objective seriousness. But that is not the case here. In my view, the defendant simply had no regard for the orders.

The plaintiff accepted that it is relevant to have regard to the extent to which work exceeded the $5000 threshold, and that some of the matters involved work of a value that did not greatly exceed that amount. It was also accepted that it is relevant that the work was not alleged to have been of a structural nature so as to engender additional safety concerns, beyond that inherent in any building work. Those matters would be highly relevant if I were sentencing for criminal offences involving breaches of protective legislation like the Home Building Act. While it would have been more serious had the defendant engaged in work with a greater value, or of structural importance, and they are therefore relevant considerations, that relevance is diminished in the context of the considerations referred to above with respect to punishment for contempt (and set out by Ward CJ in Eq in Sun v He (No 2) at [87]).

Ultimately, the defendant engaged in conduct involving him contracting for five separate building jobs in circumstances where he knew that this would constitute a breach of this Court’s orders. Although those jobs ranged in value as set out in the agreed facts, as I have indicated, irrespective of the value of the work, the engagement in each job showed a serious disregard for the authority of this Court. The fact that the conduct occurred during the course of the earlier sentence; that the defendant sought to minimise the prospect of detection by establishing the company structure described above; and the absence of any real contrition; marks this offending as a very serious case of contempt.

While the defendant gave evidence in the proceedings, relatively little material was put before the Court with respect to his subjective circumstances. What is known is that the defendant is now 37 years old. He told the author of the sentencing assessment report that he has limited contact with his immediate family. He told the officer that he has one child and that he has shared custody of the child when in the community. In his evidence he indicated a desire to engage in further study with a view to obtaining work outside the building industry. That would, obviously, be wise.

It is convenient at this point to say something of the defendant’s criminal history.

The defendant’s record commenced in 2010 in relation to driving matters which are not presently relevant. Of greater relevance are entries in this State in 2015 for what can be broadly described as fraud offences for which he was required to perform community service. In 2016 he was convicted in Queensland in relation to various offences, including further fraud related charges, resulting in a suspended sentence of 18 months imprisonment. He was again convicted in this State for fraud offences in 2017, for which he received a bond. In 2018, further fraud offences resulted in a sentence of imprisonment of 9 months which concluded in August 2018.

The defendant most recently entered custody in Victoria with respect to two charges of obtaining property by deception, attempting to obtain property by deception, and obtaining a financial advantage by deception. He was sentenced in relation to those matters on 8 September 2021, to a period of 140 days, it being noted that he had already served 139 days, having entered custody on 20 April 2021. According to his evidence the defendant was then transferred to New South Wales on 8 September 2021. It appears that he was then on remand in New South Wales in relation to outstanding fraud charges. Those matters were dealt with on 3 December 2021 at Parramatta Local Court and resulted in a sentence of imprisonment of 10 months which was ordered to commence on 10 May 2021 and which will expire on 9 March 2022.

In addition to the above matters, there are of course, the punishments imposed by Garling J and Davies J for the previous breaches of this Court’s orders.

The defendant has further offences outstanding in Queensland which he will need to address. It is not possible to speculate as to what might occur in relation to those matters.

A significant part of the defendant’s evidence was spent dealing with his conditions in custody. Those conditions are significant, both in terms of demonstrating the hardship suffered and forming the basis upon which I might find the defendant is likely to be highly motivated to avoid returning to custody.

The defendant gave evidence that his conditions have been significantly affected by the current pandemic. According to his evidence, which was not challenged in this regard, on entry to custody in Victoria he spent 14 days in quarantine. On his transfer to New South Wales he was placed in quarantine for five days and was subsequently required to spend a further 14 days in isolation. More recently, conditions have worsened. The defendant gave evidence that in the last 59 days there have been only 10 days when he has been allowed to leave his cell and on those occasions, the time out of his cell has been limited to a maximum of one hour. For the majority of this time the defendant has been in custody at Junee in a cell on his own. Despite this regime the defendant, nonetheless, tested positive for COVID-19 “eight days ago” which would be 24 January 2022. He was consequently transferred to the COVID wing at the Metropolitan Remand and Reception Centre (“MRRC”) on 26 January 2022. Since that time, he has been in a cell with one other inmate, but has otherwise been similarly confined.

The defendant indicated that he had been unable to receive any visits during this period. Even telephone contact was limited, particularly as a result of the competition for telephones during the limited time he was allowed out of his cell. He also gave evidence of having recently observed an inmate in a neighbouring cell at the MRRC being treated by ambulance officers and his body later being removed.

Unsurprisingly, the defendant said that a 24-hour lockdown “is not good for your health, for your mental health”. With respect to his experience of COVID-19 the defendant indicated that he had experienced muscle pain and weight loss, and had been bedridden for 9 to 12 days.

As was observed by Hamill J in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [48]:

The defendant’s recent experience appears to go beyond the restrictions initially put in place in response to the pandemic. This may be the result of more recent difficulties, as there has been pressure to control the potential for an outbreak in a custodial setting at a time when Corrective Services staffing is impacted by the current wave of infections in the community. Whatever the causes of the regime to which the defendant has been subject, it does not involve hyperbole to describe that experience of custody as extreme.

It should be noted that the defendant’s experience of custody to date has occurred in the context of the sentence he is currently serving, that being the sentence of 10 months imposed on 3 December 2021. While he has been awaiting sentence since 29 November 2021 in relation to the current matter, he has not been in custody on this matter. Further, it is not known how far into the future the conditions he described will endure, and, if they do not endure at their current level, what level of restrictions will be in place. However, three matters may be noted. First, the extreme conditions currently being experienced arose after the most recent sentence was imposed. It follows that it was not a matter taken into account with respect to that sentence. Secondly, it was not suggested by the plaintiff, despite the defendant’s significant reliance on the evidence, that these conditions could not or should not be taken into account in relation to this matter. Indeed, the plaintiff expressly (and in my view responsibly) accepted that the implications of the pandemic for the defendant’s conditions of incarceration are properly to be taken into account. Thirdly, on any view, the defendant’s experience put “meat on the bones” of his evidence to the effect that imprisonment has had a deterrent effect and he wants to move on with his life and not return to custody.

I regard the defendant’s recent experience of custody as a significant matter to be taken into account in determining the sentence. Further, while it is impossible to know what lies ahead, it would be naïve to proceed on the basis that the defendant’s conditions will return to normal (in pre-pandemic terms) any time in the foreseeable future. This matter is entitled to weight in the sentencing exercise.

The defendant placed weight on the delay in the resolution of these proceedings as a matter going to mitigation of penalty. It is true that delay will sometimes be taken into account in this way. Delay is potentially relevant based on the “uncertain suspense in which a person may be left”, any demonstrated progress towards rehabilitation over the period of the delay, and the fact that “sentence for a stale crime does call for a measure of understanding and flexibility of approach”: R v Blanco (1999) 106 A Crim R 303; [1999] NSWCCA 121 at [16]. See also Sabra v R (2015) 257 A Crim R 33; [2015] NSWCCA 38. The significance of any delay will depend upon the particular circumstances of the individual case.

In the present matter the offending conduct occurred between October 2018 and January 2019. As noted above, the proceedings were commenced by Notice of Motion dated 24 May 2019. The brief of evidence was served in two parts: the first part on 28 June 2019 and the second on 6 August 2019. To this point it is not suggested there was anything unusual about the progress of the matter. As is obvious however, it has taken a considerable time to progress from the commencement of proceedings and service of the brief to the passing of sentence. A detailed chronology setting out the procedural history was attached to the plaintiff’s submissions and was not the subject of any challenge. It is not necessary to set out that history in detail. It is sufficient to note that the matter followed a reasonably orthodox course leading to a directions hearing on 28 November 2019 on which date the matter was set down for hearing on 5 May 2020 with an estimated length of three days. The defendant subsequently filed a motion with the result that on 9 April 2020, the hearing date of 5 May 2020 was vacated. The defendant thereby, effectively, put off the inevitable.

Numerous directions hearings followed the vacating of the hearing and on 19 August 2020, the matter was set down for hearing on 29 November 2021, this time with an estimate of seven days. Ultimately, having previously indicated his intention to do so, the defendant pleaded guilty on 29 November 2021.

While the defendant submitted that during the period of the delay there “appears to have been no further breaches due to building work”, I would not regard this as constituting demonstrated progress towards rehabilitation. Nor is there evidence of experience of “uncertain suspense” although I do not doubt that the defendant must have been anxious about his future during the period that this matter has been over his head. Where the authorities refer to stale crimes and the need for understanding and flexibility, this most commonly arises in a context of more substantial delay or where the defendant has served sentences for other offences during the period of the delay (or both). Insofar as the defendant has been in custody in relation to other offences, I will have regard to this in determining the commencement date of the sentence. Otherwise, while I propose to have some regard to the fact of the delay, it can have only limited weight.

As noted above, the defendant pleaded guilty to each instance of contempt as set out in the statement of charges. However, as the Crimes (Sentencing Procedure) Act does not apply, there is no legislative basis for the provision of a discount as provided by s 22 of that Act, nor any mandatorily prescribed discount as provided by Division 1A of Part 3 of the Act.

The written submissions of both parties tended to assume a discount would be allowed for the utilitarian value of the plea of guilty. In oral submissions, various percentage discounts were suggested.

It can be accepted that, while these proceedings are not criminal in nature, the same policy considerations that apply with respect to pleas of guilty to criminal offences apply here. It is not however clear that, in the absence of a legislative basis, there is a foundation for allowing a discount based solely on the utilitarian value of a plea of guilty given the potential discriminatory effect: see Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [13]-[16]. While the authority of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 survived Cameron v The Queen, this was because there was a legislative basis for the provision of a discount based on the utilitarian value of the plea: R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142. In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the Court of Criminal Appeal held that, contrary to previous authority, the utilitarian value of a plea of guilty is a relevant consideration when sentencing for a federal offence. Again, however, the foundation for this conclusion was the legislative basis provided, in that case, in s 16A(2)(g) of the Crimes Act 1914 (Cth).

None of the above suggests that I should not have regard to the defendant’s (subjective) willingness to facilitate the course of justice, which had the result that seven days of hearing time and some preparation was saved. Nor, particularly in the light of the parties’ acceptance of, and argument over the quantum of a percentage discount, is there any reason not to adopt the pragmatic approach endorsed by the Court of Criminal Appeal prior to Xiao v R, and provide a separate percentage discount for this aspect of the matter (albeit that a debate could be had as to the appropriateness of a “two staged” approach in the context of a matter determined on the basis of a subjective consideration).

With respect to the timing of the plea, the defendant pointed to a letter dated 3 June 2021 addressed to the Registrar in which he sought that the hearing be vacated. In the letter, he indicated “I have just concluded another matter of which showed [sic] I may have indirectly breached the injunction orders made in 2013 and as so would enter a guilty plea for this matter”. The defendant requested the matter be listed for “a sentencing hearing at the courts [sic] earliest possible date”. The plaintiff relied on an affidavit of his solicitor Mr Mark Nicoletti dated 28 January 2022. This affidavit dealt with the history of the matter including correspondence with respect to the plea of guilty. That correspondence included the defendant’s letter just referred to. However, with respect to the negotiations that followed, Mr Nicoletti said, and (without challenge):

This is consistent with the defendant’s letter in which the defendant said he “may have indirectly breached the orders”. This assertion of an indirect breach of the orders is also inconsistent with the agreed facts. Consequently, the request for a “sentencing hearing” was premature and the letter was of little benefit other than to start the negotiation process. In the result the plaintiff was not advised of the plea until 17 November 2021 and the Court not advised until 23 November 2021. In these circumstances I do not regard the letter of 3 June 2021 to the Court as the equivalent of a plea of guilty. The plea was, in my view, a late plea. While the plea was indicated to the prosecution some twelve days before the day of hearing, and to the Court approximately one week before, that was a second hearing date, the earlier hearing date in May 2020 having been vacated on the defendant’s application. I appreciate that for substantial periods the defendant was unrepresented, and at times, in custody. Nonetheless, the matters were not of particular complexity. In all the circumstances I am inclined to allow the defendant a discount of 10% for his willingness to facilitate the course of justice.

I am unable to find that his plea has value as evidence of remorse. Indeed, no such submission was made on his behalf.

In relation to the charges, it was ultimately accepted by the plaintiff that I should impose a single penalty. That penalty must, of course, take into account the full extent of the conduct in a manner similar to determining a total when sentencing for multiple criminal offences. Further complicating the matter is the sentence currently being served. It is inapt to speak of “totality” in the context of that sentence, given the different nature of the jurisdiction. That is the case despite the defendant’s submission that the matters were related, presumably on the basis that some of the fraud offences were for offences of obtaining money for building work (in particular, fences), the deception being that the work would be done. While committed in a similar context, it is noted that these matters did not constitute breaches of the orders as they related to work of a value of less than $5000. Nonetheless, I accept it is appropriate to take a practical approach to the entirety of the defendant’s circumstances, including the impact of different terms of imprisonment and their total effect.

Had I been sentencing for a criminal offence, an issue would likely have arisen as to whether, given the different criminality, the current sentence should be cumulative on the earlier sentence which does not expire until 9 March 2022. At common law the commencement of a sentence cannot generally be postponed: see Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (Oxford University Press: Melbourne 1999) 2nd edition, p 739, cited in Ledson v Taylor (No 2) (Supreme Court (ACT), Nicholson J, 2 June 2010, unrep), and referred to by N Adams and B Baker in Sentencing for Contempt of Court, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020 at [129]. Given that the Crimes (Sentencing Procedure) Act, in particular s 47 of that Act, does not apply it is doubtful that any term of imprisonment can commence at some later date.

The defendant adopted a significantly more ambitious position. It was his contention that the sentence should be backdated to 20 April 2021. That was the date of his arrest in Victoria. That would have the result that the Victorian sentence and the Local Court sentence of 10 months commencing 10 April 2021 (which was served partially concurrently with the Victorian sentence) would be subsumed by the present sentence. That is not appropriate. In all the circumstances, I am of the view the sentence should commence on 17 November 2021, being the date the plea based on the agreed facts was notified to the plaintiff. Any later than that creates unfairness in that the defendant could have, in theory if not in practice, had the matter relisted and been sentenced that day, with the result the sentence (arguably) could have commenced no later than that day. Any earlier fails, in my view to have sufficient regard to the separate sentences imposed in Victoria and in the Local Court. I am mindful in this regard, that when account is had to the period of concurrency between the Victorian sentence and the sentence imposed in the Local Court, and the concurrency with the Local Court sentence that will result from the commencement date of this sentence, very little of the Local Court sentence will not be subsumed by other sentences.

Rule 40.7 of the UCPR relevantly provides:

As Davies J observed in Rixon (No. 4) at [29]-[31]:

Davies J subsequently exercised the discretion under r 40.7(5) and sentenced the defendant to a term of imprisonment, as noted above.

The basis for the exercise of the discretion has only become stronger as a result of the sentence imposed by Davies J. I consider the discretion should, in the present case, be exercised. There was no argument raised to the contrary. Having been twice sentenced for breaches of the same orders, the defendant was clearly aware of the likely, if not inevitable, consequence of any breach.

Having regard to the above matters, it appears that the defendant has little of significance in his favour apart from the principle of proportionality, his plea of guilty, and the conditions he has endured, and is enduring, in custody. I regard this last matter as an important consideration. The length of a sentence involving such conditions is significantly more onerous than a sentence of the same length served in normal circumstances. But for the plea of guilty, I would have imposed a sentence of 2 years. Allowing a discount of 10 percent for the plea of guilty results in a sentence of 21 months, 18 days which I would round down to a period of 21 months.

I make the following orders: