Gerald Martin Smith (Contempt application: Sentence), Re

Sentencing for contempt requires an assessment analogous to criminal sentencing, focusing on culpability and the harm caused, intended or likely to be caused. The court must first consider whether a fine is sufficient. Imprisonment is a last resort and, where necessary, must be for the shortest term that properly reflects the seriousness of the contempt. Relevant considerations include deliberateness, culpability, harm, pressure from third parties, remediability, mitigation, personal circumstances and the impact on others. A suspended sentence remains a custodial sentence. Activation is discretionary and may be in whole, in part, or not at all. Separate contempts may attract consecutive terms, subject to totality.

The Serious Fraud Office applied to commit Gerald Martin Smith for contempt. The application followed a liability judgment in which the court found three categories of deliberate contempt: excessive spending in breach of a restraint order; breaches of undertakings concerning Flat 21; and breaches of undertakings concerning Flats 11 and 12.

The hearing concerned sentence. The court considered the seriousness of the contempts, financial and institutional harm, Smith’s previous convictions and earlier suspended contempt sentence, mitigation, personal circumstances, totality, and whether the earlier suspended sentence should be activated.

1. Sentencing principles. The purposes of committal include punishment and coercion, including deterrence. The court adopted an approach analogous to criminal sentencing by assessing culpability and harm. It first considered whether a fine was sufficient. Because the contempts were sufficiently serious, only custody would suffice, and the court imposed the shortest terms properly reflecting that seriousness.
2. Relevant considerations. The court considered the deliberate and planned nature of the breaches, their culpability, the harm caused to the receivership and the administration of justice, the involvement of third parties, the repeat nature of the conduct, its occurrence during the operational period of a suspended sentence, the defendant’s apologies and cooperation, previous character and convictions, age, health, family circumstances and likely loss of eligibility for Home Detention Curfew.
3. Custody and suspension. Imprisonment is a measure of last resort. The maximum term is two years under Contempt of Court Act 1981, s 14(1), including any activated part of a suspended sentence. A suspended sentence remains a prison sentence and is not a lesser punishment. The court declined to suspend the terms because immediate custody was required.
4. Activation and totality. Activation of a suspended sentence is discretionary and is not automatic. The court may activate all or part of it, impose a fine, or impose no further punishment. Applying totality, the court imposed 11 months’ imprisonment for the three contempts, comprising one month for overspending and five months for each property-related contempt. It reactivated two months of the earlier suspended sentence. The terms were to run consecutively and commence on 8 January 2025.
5. The defendant was to serve half of the overall custodial term and the reactivated portion before release on licence. An order and warrant of committal were directed to issue.

The judgment states that an appeal lies to the Court of Appeal without permission and must be commenced within 21 days after the order reflecting the judgment. No appellate decision is stated.