Plaintiff v Defendant

2 The application is based upon an admitted contempt of this court in that the defendant failed to comply with an order made by the court on 27 October 2004. By that order, which was made by consent, the defendant was restrained from engaging in legal practice in this State or representing or advertising that he was qualified to engage in such practice.

3 The summons gives particulars of instances in which it is alleged and, as the defendant accepts, proven, that he engaged in practice as a solicitor. First, he acted as the legal representative of a purchaser in a sale of property at Ballarat. His participation in that transaction included his preparation of a transfer of land and his being witness to the signature of the transferee. He subsequently lodged the transfer with the Registrar of Titles in circumstances that, as the defendant accepts, amounted to engaging in legal practice contrary to the orders of October 2004.

4 The next instance referred to in the summons occurred on 19 March this year. The defendant then appeared in the Magistrates' Court at Ballarat on behalf of a man named Barry Marshall who was a friend, or a friend of a friend. The defendant announced his appearance, announced that a plea or pleas of guilty were to be made on behalf of Mr Marshall and then proceeded to put the plea to the court. Here again the defendant engaged in legal practice in contravention of the relevant order.

5 The next instance is similar to the one just described. On 29 May 2007, the defendant announced an appearance in the Magistrates' Court at Maryborough on behalf of one Julie Mullens. Again she was either a friend, or a friend of a friend. Again the defendant represented that he was qualified to act for her as a legal practitioner. In that case, as in the case before the Magistrates' Court in Ballarat, the defendant announced his appearance on behalf of the client and the court accepted that appearance as one entered by a legal practitioner. In addition, in the incident in Maryborough the defendant informed a police officer, Kerrie Bourke, that he was acting for Ms Mullens in that case in which Mr Bourke was the police prosecutor.

6 The defendant has pleaded guilty to each of these matters. It is to be taken in his favour as a mitigating circumstance that the indication that he wished to plead guilty and would not contest the charges was made at the earliest possible moment, as is evidenced by a letter dated 12 July 2007 from the defendant to the Director of Professional Standards at the Law Institute of Victoria. In that letter the defendant said, among other things, that in relation to the two appearances in court for respectively Mr Marshall and Ms Mullens, he "had no answer." He went on to say that he simply wished to help each of those persons out and that he deeply regretted the trouble and inconvenience he caused to the parties, adding that he had no excuse for what he did.

7 In the letter of 12 July, the defendant also deals with the conveyancing transaction. He goes in some detail into the background of that matter and its unfortunate financial consequences for him, given that his overall involvement included the renovation of a house - which renovation was rendered impossible when a storm damaged the property to such an extent that the land had to be cleared and sold as a vacant block.

8 Although the early plea is a matter that must be taken into account as a mitigating circumstance, the offences remain serious. The defendant practised as a solicitor for some 20 years. There can be no question that he was fully aware of his change in circumstance when his practising certificate was not renewed and when the orders were made in October 2004. He was, I am satisfied, fully aware of the impact and import of the orders then made and aware that on each of the three occasions, the subject of the charges presently before me, he was acting in disobedience of them. That disobedience could I think be properly described as contumelious, particularly in relation to the appearances in court. Not only was the offender then in breach of the order of October 2004, but he compounded that breach by representing to the court that he was legally qualified to practice as a solicitor and therefore to appear on behalf of those for whom he purported to appear.

9 In one case at least the appearance, as I am told by Mr P Bourke, who appeared for the defendant, followed only 48 hours after an approach by Mr Marshall to the defendant for that purpose. It therefore was an appearance that was not preceded by a considerable period during which the defendant had time to reflect on his position. Nevertheless it ought not to have taken a moment's thought, let alone 48 hours, for the defendant to appreciate the seriousness of that which he was doing.

10 Since 2004, and indeed before that time, the defendant's affairs and his personal life have not been happy. He has had financial and relationship difficulties, partly at least a product of alcohol abuse. I am in no position to say that the defendant is suffering from alcoholism; and that was not put as a mitigating or indeed any other circumstance. Indeed, although as I understand it Mr Bourke submitted that the defendant was someone who had problems with alcohol, those problems were not put so high as to suggest that he suffers from alcoholism. Be that as it may, I accept that the defendant's current circumstances, both financially and otherwise, are doubtless not what he would wish for himself.

11 He is presently dependent upon Centrelink payments for financial support because he has no permanent employment and apparently little prospect, if any, of obtaining such employment in the future. He does some paid work, I understand, for the RSL in his locality at Hepburn Springs, but he also fills in as a volunteer with the RSL club in that locality, and indeed has served on its committee for periods which together amount to some seven years.

12 I have before me a psychological assessment of the defendant prepared by Ian Joblin and dated 22 November 2007. In that assessment Mr Joblin speaks of the defendant as an intelligent man who is affable, approachable and amicable. To an extent these characteristics, together with the defendant's extrovert nature, have been a problem in that he tends to accede to requests of the kind which I accept led him into the three instances of breach with which I am concerned.

13 I accept that he was in each case approached by the person for whom he purported to act rather than made an approach to them. I also accept that he received no fee in any of those instances and that he did not put himself forward as being prepared to do more than give an isolated instance of assistance but without any suggestion that that assistance would be more than of a passing and temporary kind. He is not, as Mr Bourke submitted he was not, one who has sought to prey on innocent persons unaware of his circumstances with a view to making illegitimate financial gain from such activity.

14 One of the matters which I must nevertheless bear to the forefront of my mind is the necessity to ensure that behaviour of the kind in which the defendant engaged is not repeated. That brings in considerations of both individual and general deterrence. It was put by Mr Bourke that the defendant has had hanging over his head since these matters came to the notice of the Law Institute the possibility that he might be incarcerated. That possibility has been sufficiently disturbing, so Mr Bourke submits, and I accept, as to ensure that the defendant would not be tempted to once again engage in the activities which are the subject of these charges. I therefore accept that the need for individual or specific deterrence is in this case relatively low.

15 There remains the question of general deterrence. A former solicitor who by consent has accepted an order of the court that he not continue to practice as a solicitor but who nevertheless defies that order and does exactly what was forbidden by it is one who shows if not contempt for, then a disregard for one of the principal aspects of legal practice. It is of course true that the defendant is no longer engaged in legal practice. Nevertheless he, one would hope, would have a clear appreciation of the need to sustain the rule of law.

16 The rule of law is, as any person with legal training would appreciate, a vital component in the proper functioning of any civilised society. Without it, civilisation cannot exist. For one who has practised for 20 years as a solicitor to knowingly engage in activities which flout the rule of law is a matter which cannot be regarded other than seriously. The need to ensure that others are dissuaded from following the defendant's example is equally important.

17 It is in those circumstances that I must have regard to the submissions made to me about penalty. It was submitted on the defendant's behalf that a fine would be appropriate in this case. The difficulty I have with that submission is not only that a fine in itself, unless very substantial, would not meet the need for general deterrence, but that the defendant's financial position is such that no substantial fine could be paid.

18 I accept, as Mr Bourke has rightly put to me, that one must not have improper regard to financial circumstances when deciding whether or not to impose a fine rather than some other form of punishment. If a fine is appropriate, then a fine should be nominated as the penalty even if that means that because of financial circumstances the fine must be small.

19 In the circumstances of the present case, however, it seems to me that a fine would be inappropriate. It would not serve its purpose as a punishment signifying general deterrence and in any event it would, even bearing in mind the matters to which I have just referred, be impossible to fix a fine that the defendant could realistically repay.

20 In those circumstances it seems to me that imprisonment is the appropriate punishment. I am, however, inclined to the view that any term of imprisonment should be wholly suspended. It seems to me that in that way the aims of both specific and general deterrence would be met, while at the same time the seriousness of the offences would be made plain. I, in saying this, appreciate that under the principles laid down by the Sentencing Act, a term of imprisonment must first be accepted by the court as appropriate and only then may the court turn to consider whether or not it should be suspended. I am not perfectly certain that those principles apply in this case.

21 I note the suggestion in the judgment of Gillard J in the matter of Nagle that in certain respects the Sentencing Act does not apply to contempt of court. Nevertheless, even if the principle just enunciated does not in strictness apply to this case, it seems to me that it would be appropriate were I to first determine that imprisonment was the appropriate punishment and then decide whether or not it should be suspended. That indeed is what I have done. It seems to me that, subject to any submissions by counsel that this approach is legally inappropriate, a sentence of four months' imprisonment should be imposed but that that sentence should be wholly suspended for a period of 12 months. The defendant must pay the costs of the Institute, assessed as between party and party.