Supreme Court of Western Australia hands down prison sentence for contempt of court

In the recent case of Michelmore v Brown [No 7] [2025] WASC 247, the Court sentenced two people to 30 days imprisonment for contravening Court orders handed down in defamation proceedings.  The contravention constituted contempt of court and, once the contemnors were found in contempt, their actions thereafter only made matters worse.

Background

On or about 31 July 2023, Mr Jerald Martin and Ms Emma Hazel Martin (the Martins) sent an email setting out a number of allegations which impugned the integrity and professional competence of Ms Laura Jane Michelmore, the Martins’ former legal representative.  The email was sent to a number of recipients including, amongst others, the email addresses of the Central Office of the Supreme Court of Western Australia, the Attorney-General, the Legal Practice Board and the Commissioner of Police.

In Michelmore v Brown [No 3] [2025] WASC 9, Tottle J found the imputations had no factual basis and were defamatory.  On 15 January 2025, Tottle J ordered the Martins pay Ms Michelmore $90,000.00 in damages and granted an injunction restraining the Martins from making statements that repeated the 31 July 2023 email’s defamatory imputations.

On 18 February 2025 and 30 March 2025, the Martins went on to repeat the defamatory imputations to a group called the Sovereign Peoples Assembly of Western Australia.

Consequently, on 22 April 2025, Solomon J found the Martins guilty of two charges of contempt of court for disobeying Court orders.¹ Solomon J deferred sentencing until 18 June 2025 and urged the Martins to obtain legal advice in the interim and made a pro bono barrister available to the Martins.

Martins’ submissions on penalty for contempt

Ms Michelmore and the Martins were invited to file submissions on the question of the Martins’ penalty for contempt.  The Martins filed a number of documents which made clear that the Martins did not accept the authority of the Court nor the orders of Tottle J.  Solomon J noted the content of some of the documents may be construed as threatening to judicial officers and police officers which, in itself, could amount to a contempt of court.²  These statements included:³

By competent standards in Law, the Court is not the Authority.  The People Are.

We will not continue to engage in the beliefs that the Court has any valid standing.

All Orders are Null and Void due to failure of Lawful Due Process, that is; the defence was not permitted to be filed in readiness for the trial, rendering the Court and Judge Tottle to be incompetent, and Judge Solomon to be incompetent as he also pursues Null and Void Orders.

During the sentencing hearing, the Martins were given the opportunity to make oral submissions in relation to their penalty for contempt.  The Martins instead reagitated matters in relation to the defamation proceedings and contempt hearing which were irrelevant to sentencing.

Court’s power to punish contempt

The Court’s power to charge and punish a person for contempt arises from Order 55 rule 7(1) of the Rules of the Supreme Court 1971 (WA):

The court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine, or by both committal and a fine.

Solomon J described this as an “immense power that must be exercised sparingly”. ⁴  It is therefore integral that conduct be properly characterised as contempt of Court.

Solomon J distinguished conduct the Court disapproves of, such as conduct that is unusual, irritating, rude or belligerent, from conduct constituting contempt.⁵ In the latter case, “[t]he threshold requirement is that the court must find that the conduct interferes with the administration of justice, or in some way demonstrates a contumelious disrespect for the authority of the court.”⁶

In ordinary circumstances, the Court cannot arbitrarily punish a person for holding a certain set of beliefs, notwithstanding the judicial officer finding those beliefs to be irrational, irritating or offensive.⁷  The Martins repeatedly told Solomon J that they were not dangerous people.  In response, Solomon J stated the following:⁸

The ideas [the Martins] express, however, can be extremely dangerous. Dangerous ideas breed dangerous people, whether those people consider themselves to be peaceful, dangerous or otherwise.

The Martins’ beliefs, and their conduct in expressing those beliefs, were of such a serious nature that left unchecked would risk undermining public confidence in the Court and justice system more broadly.  As Solomon J put it:⁹

A just and tolerant society must zealously guard the instruments and institutions that preserve justice and tolerance.

Principles of sentencing

Solomon J set out that sentencing for contempt is twofold in that it serves both a coercive and punitive purpose.¹⁰  The coercive nature of a sentence for contempt serves to ensure Court orders are enforced and complied with in future.¹¹  The party for whose benefit an order was made cannot be forgotten.  The sentence as a form of punishment serves as an individual and general deterrence and retribution for failure to comply with a court order.  Solomon J aptly captured the protective nature of a sentence:¹²

Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed.  If they are defied or ignored, the whole system of dispute resolution by litigation breaks down.

Solomon J recognised that while contempt is not governed by the Sentencing Act 1995 (WA), the section 6 principles of sentencing are relevant to determining a penalty for contempt.¹³  Most notably, Solomon J had regard to subsections 6(1) and 6(4) which respectively state:

A sentence imposed on an offender must be commensurate with the seriousness of the offence.

A court must not impose a sentence of imprisonment on an offender unless it decides that —

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

Decision

Solomon J ultimately found “[t]he contempt in this matter was unequivocally deliberate, defiant and flagrant”¹⁴ and of such a serious nature that a term of 30 days imprisonment for the Martins was justified.  The Court had no confidence the Martins’ would not breach Court orders again and handed down a coercive sentence accordingly.

The Martins did not accept legal assistance by the pro bono barrister organised by the Court and repeatedly expressed their views that the Court was inferior and its orders null and void.   At no point in their submissions did the Martins express remorse for their contempt in defying the Court’s authority.  With respect to this conduct, the Court had no alternative but to mark its disapproval of the Martins’ conduct in the most serious way.¹⁵

Lavan comment

Solomon J made clear the purpose of the sentence was also to have a general deterrent effect as His Honour stated:¹⁶

It is indeed of grave importance that a message be sent not just to Mr and Ms Martin, but to the general community that views of this nature will not be tolerated.

Notwithstanding the Martins’ conduct was on the extreme end of the spectrum, the message to the public at large sent by Solomon J’s judgment and sentence cannot be underestimated.  Contempt of Court, that is conduct which actively and expressly defies the authority of the Court, will not be tolerated, especially when a contemnor elects to persist with such conduct.  Court orders should be properly complied with.  If they are not, the Court will not hesitate to step in with an arbitrary and summary measure to ensure justice is duly and properly administered without interruption or interference.¹⁷

If you have any concerns or questions in relation to the Western Australia justice system please contact Partner Iain Freeman.

Thank you to Freya Surma-Litchfield, Solicitor, for contributing valuable research and assistance with this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes