Young v Smith (No 4) [2017] NSWSC 1443

Young v Smith (No 4) [2017] NSWSC 1443

The contemnor's conduct was a serious, deliberate, and contumacious breach of court orders with the intent to obtain financial advantage and frustrate the plaintiff's enforcement of prior orders. Taking into account both objective seriousness and subjective mitigating factors, a custodial sentence (suspended) and a substantial fine are required for specific and general deterrence as well as vindication of the court's authority.

Parties
Plaintiff: Joanne Elizabeth Young; Contemnor: Josephine Aapa Smith
Jurisdiction
Australia
Judgment Date
25 October 2017
Procedural Posture
Contempt Proceedings / Sentence
Outcome
Conviction for contempt; sentenced to imprisonment (suspended), fined, costs awarded to plaintiff.
Legal Topics
Breach of Court Orders, Sentencing for Contempt, Freezing Orders, Mortgage Dealings in Breach of Order
Contempt of Court Civil Law Criminal Law Breach of Court Orders Sentencing for Contempt Freezing Orders Mortgage Dealings in Breach of Order

Case Brief

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Parties

Joanne Elizabeth Young

Plaintiff

Josephine Aapa Smith

Contemnor

Procedural Posture

Contempt Proceedings / Sentence

Legal Issues

  1. 1 What is the appropriate sentence for deliberate breach of a court's freezing order by dealing with property subject to the order?
  2. 2 Whether the contempt offence warrants a custodial sentence and/or monetary penalty in the circumstances.

Ratio Decidendi

The contemnor's conduct was a serious, deliberate, and contumacious breach of court orders with the intent to obtain financial advantage and frustrate the plaintiff's enforcement of prior orders. Taking into account both objective seriousness and subjective mitigating factors, a custodial sentence (suspended) and a substantial fine are required for specific and general deterrence as well as vindication of the court's authority.

Court Disposition

Conviction for contempt; sentenced to imprisonment (suspended), fined, costs awarded to plaintiff.

Orders

  • The Court records a conviction for contempt committed by Josephine Aapa Smith.
  • The Contemnor is sentenced to 6 months' imprisonment; execution of sentence is wholly suspended for 6 months on condition of good behaviour; sentence commences 25 October 2017.