Arulogun v Legal Services Commissioner

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DISTRICT COURT OF QUEENSLAND

CITATION:

Arulogun v Legal Services Commissioner [2023] QDC 207

PARTIES:

ARULOGUN, Stephen Oluboyede

(appellant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

2941/23

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

17 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2023

JUDGES:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   I vary the sentence imposed in the Magistrates Court by imposing 9 months imprisonment (instead of 12 months) on each of charges 2, 6, 8, 10, 14, 18, 20, 22, 26, 28, 30, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72 and 75, to be served concurrently with each other and the other terms of imprisonment.

3.   I vary the parole release date imposed in the Magistrates Court to 11 January 2024.

4.   I give the parties liberty to apply on any question concerning the numbering of the charges.

CATCHWORDS:

CRIMINAL LAW – APPEAL – SENTENCE - where the appellant breached provisions of the Legal Profession Act 2007 by representing that he was a lawyer on Airtasker – where the offending occurred over 14 months and involved 33 complainants - where the appellant had previous convictions as a pharmacist - where appellant pleaded guilty - whether Magistrate took into account the pleas of guilty - whether delay relevant as a mitigating factor in circumstances where the appellant had not committed further offences for almost two years  - whether a jail sentence was the only available option - whether sentence manifestly excessive

Justices Act 1886 (Qld) ss 222, 223 and 224
Legal Profession Act 2007 (Qld) ss 3, 24, 25, 115
Penalties and Sentences Act 1992 (Qld) ss 9, 13

Attorney-General v Legal Services Commissioner [2018] QCA 66, considered
Legal Services Commissioner v Braid, Magistrates Court 7 February 2017, considered
Legal Services Commissioner v Wrightway Legal [2015] QCAT 174, considered
New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279, considered
R v Bond, District Court 25 November 2016, considered
R v CCR [2021] QCA 119, cited
R v DAC [2023] QCA 53, cited
R v Horne [2005] QCA 218, considered
R v Illin [2014] QCA 285; 214 A Crim R 176, cited
R v Law; ex-parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63, considered
R v Oliver [2018] QCA 348; [2019] 3 Qd R 221, considered
R v Phillips [2008] QCA 284; 188 A Crim R 133, cited
R v Waite [2017] QCA 270, considered
Pearson v Legal Services Commissioner [2018] QDC 266, considered

Reichman v Legal Services Commissioner [2017] QDC 158, considered

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, applied
The Queen v Crowley, Magistrates Court 21 April 2023, considered
Tones v R [2017] VSCA 118, cited

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Details
Case
[2023] QDC 207
Decision Date

CaseChat Overview and Summary

The case of Arulogun v Legal Services Commissioner involves the appellant who pleaded guilty to multiple charges of breaching provisions of the Legal Profession Act 2007 by representing that he was a lawyer on the Airtasker website. The appellant's conduct spanned over 14 months, involved 33 complainants, and resulted in him earning approximately $8,126 in fees. The Legal Services Commission referred the matter to the court following the appellant's failure to cooperate with an investigation. The appellant argued that the sentence imposed by the Magistrate was unjust and unreasonable, claiming that the Magistrate erred in rejecting delay as a mitigating factor and in failing to properly consider his pleas of guilty. The respondent, on the other hand, argued that the Magistrate's findings were justified and that a jail term was the only appropriate sentence given the nature and extent of the appellant's offending.

The legal issues before the court were whether the Magistrate took into account the appellant's pleas of guilty, whether the delay in the proceedings was relevant as a mitigating factor, whether a jail sentence was the only available option, and whether the sentence imposed was manifestly excessive. The court considered the appellant's arguments alongside the respondent's submissions and examined the Magistrate's reasons for the sentence imposed. It was found that the Magistrate had indeed considered the appellant's pleas of guilty and reduced the penalty by setting a parole release date, which is consistent with common practice in such cases. The court also concluded that the appellant's criminal history and the sophisticated, systemic nature of his offending were relevant aggravating factors that distinguished his case from comparable decisions.

After thorough deliberation, the court decided to allow the appeal and vary the sentence imposed by the Magistrate. The court reduced the sentence from 12 months imprisonment to 9 months imprisonment, to be served concurrently with other terms of imprisonment. The parole release date was also adjusted to 11 January 2024. The court emphasised that the Magistrate's findings were open and that there was no error in his approach. The parties were granted liberty to apply on any question concerning the numbering of the charges, providing some flexibility in addressing any potential discrepancies. This decision underscores the importance of considering all relevant factors in sentencing, including the nature of the offence and the offender's criminal history, while also recognising the value of timely pleas of guilty.

Orders

Orders of the court

1. The appeal is allowed.

2. I vary the sentence imposed in the Magistrates Court by imposing 9 months imprisonment (instead of 12 months) on each of charges 2, 6, 8, 10, 14, 18, 20, 22, 26, 28, 30, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72 and 75, to be served concurrently with each other and the other terms of imprisonment.

3. I vary the parole release date imposed in the Magistrates Court to 11 January 2024.

4. I give the parties liberty to apply on any question concerning the numbering of the charges.

Background

Background to the litigation

An initial matter to be dealt with is whether an error occurred in the Magistrate imposing jail terms on charges 4, 12, 16, 24 and 32 because these charges had been discontinued. The Magistrate referred to those charge numbers when imposing 12 months imprisonment. However those charges are not referred to in the Verdict and Judgment Record. The Magistrate referred to a schedule which had different numbering to the numbering in the complaint. In the end, I am not satisfied any error has occurred in this regard. The facts An agreed statement of facts was tendered at the sentencing hearing. This revealed that the maximum penalties for each charge was 300 penalty units ($46,440 or two years imprisonment). The appellant held a Bachelor of Laws degree from the Queensland University of Technology, conferred on 9 December 2014. He completed College of Law in 2015. On 29 June 2020, the appellant confirmed his intention to make application for admission to the legal profession with the Legal Practitioners Board of Admissions. On 27 July 2020, his application for admission was adjourned to a date to be fixed. He has never been admitted to the legal profession in any jurisdiction within Australia nor has he ever held a practising certificate. On 9 March 2020, he became a member of the website Airtasker. His username was ‘Stephen A’. His Airtasker profile stated that:(a)He was an industrial relations, regulations and commercial consultant;(b)He held professional indemnity insurance to provide litigation process, commercial, IR and HR and government regulation consulting; and(c)He could provide workplace relations and employment advice from $50. His profile had 52 reviews which were available for review by other members of the public. He had a 100 percent completion rate and an overall five-star rating. The reviews clearly indicated he had provided legal advice to 33 people. The appellant earned about $8,126 in fees as a result of his unlawful conduct. On 9 February 2021, the appellant was referred to the Legal Services Commission by the Registrar of the Supreme and District Courts of Queensland. The Commission identified numerous instances of the appellant advertising an entitlement to engage in legal practice using Airtasker. On 24 November 2021, the Commission applied for an injunction restraining the appellant and his company from engaging in legal practice. On 15 December 2021, the injunction application was dismissed upon the appellant entering an undertaking to refrain from engaging in legal practice, representing or advertising he was entitled to engage in legal practice and that Talus Services would refrain from engaging in legal practice. On 14 January 2022, the appellant’s legal representative wrote to the Commission informing the Commission the appellant did not intend to provide a submission regarding the allegations. A record of interview was offered in November 2022 but there was no response. At the time of the offending the appellant was 36 to 38 years of age. He had a criminal history.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Alternatively, the appellant argued that a suspended sentence would be imposed bearing in mind the provisions of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) (“PSA”).Magistrate’s decision The Magistrate in his reasons referred to the maximum penalties and the charges. He referred to the agreed statement of facts. He noted the plea of guilty. He noted the offending occurred over some 14 months and involved 33 members of the public. He noted it was prolonged, sophisticated and systemic. He found the offending was deliberate misconduct on the part of the appellant. It was serious and s 3 of the Legal Profession Act was relevant. He did not cooperate with the investigation but entered pleas of guilty and accepted they were timely and this demonstrated significant cooperation. He referred to the appellant’s personal circumstances and the reports of Ms Jones and Mr Vecchio. He noted his criminal history and noted the purposes of sentencing and the relevant comparable decisions. In the end, the Magistrate considered that general deterrence and public denunciation were important features in the sentence and ultimately imposed 12 months imprisonment with a parole release date after serving four months in actual custody.Appellant’s submissions The appellant submits that the sentence imposed by the Magistrate was unjust and unreasonable. It is submitted that the Magistrate erred in rejecting delay as a mitigating feature. It is submitted the Magistrate erred in failing to take into account the plea of guilty. He misapplied s 9(2) of the Penalties and Sentences Act. It is submitted that by reference to the comparable decisions, a jail term was outside of the appropriate sentencing range.Respondent’s submissions The respondent submits that there were aggravating features of the appellant’s offending which distinguished it from the comparable cases. The appellant had been referred to the respondent by a District Court Judge yet continued to offend after this. He had a relevant criminal history and the scheme was sophisticated, systemic and deliberate. All of the findings that the Magistrate made were open. It is submitted that there was no significant delay between the date of the undertaking in the Supreme Court and the issue of the complainant’s summons (four months). There was no error in the Magistrate’s approach. The Magistrate took into account the plea of guilty. The Magistrate did not misapply s 9(2) of the Penalties and Sentences Act. A prison term was the only appropriate sentence open.Discussion In my respectful opinion, the Magistrate specifically took into account s 13 of the Penalties and Sentences Act and referred to the plea of guilty (reasons page 1-3.20). It is clear that the Magistrate reduced the penalty otherwise available by at the least setting a parole release date at the third of the head sentence. This is a common practice where pleas of guilty occur (R v CCR [2021] QCA 119 at 18 and R v DAC [2023] QCA 53 at 31-32). There was no error established here.

Ratio Decidendi

Legal Principle Established

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