Jordan v Persse - [2017] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
JORDAN v PERSSE
[2017] SASC 133
Judgment of The Honourable Justice Hinton
20 September 2017
PROFESSIONS AND TRADES - LAWYERS - UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS - ACTING AS SOLICITOR
CRIMINAL LAW - PROCEDURE - JURISDICTION - WHERE QUESTION OF EXTRA-TERRITORIALITY RAISED - LOCALITY OF CRIME
Appeal against conviction and sentence by a Magistrate for one count of holding out as being entitled to practise law without a practising certificate issued and in force contrary to s 21(1) of the Legal Practitioners Act 1981 (SA). The appellant was sentenced to a bond to be of good behaviour for 12 months on the condition that he perform 80 hours of community service.
The prosecution case at trial turned on a letter which the appellant admitted to having written and sent to its recipient in Western Australia. The letter, amongst other things, had on its letterhead the word “Solicitor” and recorded a South Australian address. It was in writing that letter, and having regard to its form and content, that the prosecution contended the offence contrary to s 21(1) was committed.
Held: Appeal dismissed.
1. The offence contained in s 21(1) is capable of having an extra-territorial operation. The requisite territorial connexion existed in this case.
2.      The letter prepared and sent by the appellant was admissible as an item of real evidence. In any event, if it were to be used for a hearsay purpose, it would nevertheless be admissible as a statement against interest.
3.      The appellant held himself out as being entitled to practise the profession of law in South Australia by describing himself in his letterhead as a solicitor. It matters not what the recipient actually perceived; rather, it matters what the reasonable person would have inferred from the form and content of the letter.
4. Section 21(3a) does not excuse the person who holds themselves out as entitled to practise the profession of law in South Australia simply because they may also provide legal services in relation to the law of a place outside of Australia.
5.      In all the circumstances the sentence imposed was not manifestly excessive.
Legal Practitioners Act 1981 (SA) ss 5, 21; Criminal Law Consolidation Act 1935 (SA) ss 5E, 5F, 5G, 5H, referred to.
Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36; Lipohar v The Queen (1999) 200 CLR 485; Port MacDonnell Professional Fishermen’s Assn Inc v SA (1989) 168 CLR 340; Horseman v Nairn [1926] SASR 1; Steel v Mortlock [1971] SASR 289; Taylor v Richardson [1938] 2 All ER 681, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Holding out"

JORDAN v PERSSE
[2017] SASC 133
Magistrate’s Appeal
HINTON J.
Introduction

On 7 March 2016 the appellant was found guilty by a Magistrate of one count of holding himself out as being entitled to practise the profession of law, when he did not hold a practising certificate issued and in force, contrary to s 21(1) of the Legal Practitioners Act 1981 (SA) (the Legal Practitioners Act). On 20 May 2016 he was convicted and sentenced to a bond to be of good behaviour for a period of 12 months on condition that he perform 80 hours of community service. He now appeals against his conviction and sentence.
The prosecution case at trial turned on the content of a letter (Exhibit P6) that the appellant admitted writing to a Ms Pavia in August 2013. It was in writing that letter, and having regard to its form and content, that the prosecution contended the appellant had held himself out as being entitled to practise the profession of law.
On the hearing of the appeal the appellant agreed that the various grounds contained in his Notice of Appeal could be reduced to the following five questions:
1. Does the offence contained in s 21(1) of the Legal Practitioners Act have an extra-territorial operation? This question arises because the appellant asserts that if there was a holding out it took place in Western Australia where the letter was received.
2.   Was the letter to Ms Pavia admissible?
3.   Did the appellant hold himself out as being entitled to practise the profession of law in that letter?
4. Does s 21(3a) of the Legal Practitioners Act permit the appellant to act as he did in writing the letter?
5.   Was the sentence imposed manifestly excessive?
Before dealing with each question in turn it is convenient to summarise the prosecution case and the Magistrate’s reasons for finding the appellant guilty.
The prosecution case and the Magistrate’s reasons
The Magistrate articulated the elements of the offence with which the appellant was charged as follows:[1]
1.The defendant is a natural person;
2.The defendant held himself out as being a person who is entitled to practice the law;
3.The defendant did not hold a practising certificate issued under Part 3 of the Legal Practitioners Act, 1981 (SA); and
4.The defendant is not an interstate legal practitioner as defined by the Act.
[1] Persse v Jordan AMC-14-14686, 7 March 2016 at [49].
She added that the offence was one of strict liability.[2]
[2] Persse v Jordan AMC-14-14686, 7 March 2016 at [51].
On the hearing of this appeal the appellant did not take issue with the Magistrate’s distillation of the elements of the offence nor with her conclusion that the offence was one of strict liability. Accordingly, I proceed on the basis that the Magistrate was correct in this regard.
The Magistrate recorded that the only element in dispute at trial was the second, namely, whether the prosecution had proven beyond reasonable doubt that the defendant had held himself out as being a person who was entitled to practise the profession of law.[3]
[3] Persse v Jordan AMC-14-14686, 7 March 2016 at [50].
The appellant did not give evidence and, with the exception of challenging the admissibility of the letter to Ms Pavia referred to above and reproduced below, did not challenge the prosecution case.
The prosecution case was largely dependent upon the evidence given by a senior government investigator, and the content of an interview that the investigator conducted with the appellant. In her summary of the record of interview the Magistrate included:[4]
[4] Persse v Jordan AMC-14-14686, 7 March 2016 at [89]-[91], [96]-[100].
The defendant described his occupation as ‘Company Director’. He agreed that on 21 August 1998 he was struck off the Roll of Practitioners in South Australia. Prior to that date he had practised law for some 20 years.
Since being struck off the defendant confirmed that he had not been enrolled in any Australian jurisdiction as a legal practitioner.
In 2010, the defendant applied to be admitted as a legal practitioner in South Australia but subsequently decided that he did not want to practice law. He does not practice law in South Australia.
…
The defendant knew that he could not hold himself out as capable of doing work in South Australia. He said that about 18 months prior to the date of interview he entered into an arrangement with a local practitioner. Any South Australian work which came via the website and, which he regarded as requiring a Practicing Certificate, was referred to this practitioner. There were only 2-3 such referrals in the previous 18 months.
During the interview the defendant explained that, in about April 2013, he met Sonia Pavia on a social site. They became friends. She asked him about an American not for profit process and documentation relating to that process. Ms Pavia paid the defendant for this work which he admitted contained a legal component.
In about September 2013, Ms Pavia told the defendant that a person called Aida De Ceglie was exploiting materials which she had given Ms De Ceglie. Ms Pavia said that Ms De Ceglie was also using work produced by the defendant and said to the defendant “… I want you to write to her and tell her to stop…”
The defendant told Ms Pavia that he did not really want to get involved. It was not his battle. The defendant said “I wrote to, I wrote to Sonia, I think…And Sonia forwarded that on…To Aida.”
The defendant then identified the two page letter dated 13 August 2013 and confirmed that it was the letter he had prepared and signed (Exhibit P6). He confirmed that the letter was sent by e-mail within one week of that date.
(footnotes omitted.)
To that summary should be added the concession made by the appellant that Ms Pavia lived in Perth. Further, that the appellant had done some work for Ms Pavia that drew upon his legal knowledge and had a legal component. He was not prepared to reveal precisely the nature of that work, commenting that his instructions from Ms Pavia came on a commercial, in-confidence basis. He said that he was paid for the work that he did.
Exhibit P6, the letter to Ms Pavia subject of the charge, was admitted over objection. Bearing in mind that the resolution of the third question that arises for determination in this appeal turns on the inferences to be drawn from Exhibit P6, it is necessary to set it out in its entirety. I have masked contact details for the obvious reason.
Neville Jordan – Solicitor
[email protected]
Telephone 61 08 8xxxxx97
x xxxxxxxxxxx Ave Fulham 5024
ABN: 44 xxx 824 xxx
Sonia Paiva
PO Box XXX
XXXX WA 6966
13th August 2013
Transmission by: Skype
Our Ref:NJ:km:12139
Your Ref: Foundations
Sonia
FOUNDATION DOCUMENTATION
AIDA DE CEGLIE
Further to our recent discussions, I confirm your engagement of the writer last year to prepare documentation for your foundations. I confirm that I looked at a number of precedents. I took the content of the precedents and rewrote the terms in accordance with my experience and background and your instructions. I further commissioned work to two of my lawyers for assistance with the development. I take this opportunity to confirm that the work presented to you was so altered from the precedents as to be sufficient for original work. I claim a copyright in that work.
You have informed me that Aida De Ceglie has copied my documents and is using them for commercial purposes. That appears to me to be a clinical breach of the Copyright Act. I produced this writing and I think sections 31 to 35 of the Copyright Act automatically generate my title, and thereby produce Aida De Ceglie’s infringement pursuant to Division 2 of the said Act. If what you are saying is correct, there is no doubt that there is a flagrant breach of the Copyright Act. Further I think Aida De Ceglie is trading in legal documentation together with an accompanying advice which I think is likely to be a breach of the Western Australian Legal Practitioners Act. Both attract sanctions with the Copyright Act in Part 5 dealing with remedies and offences.
I confirm our discussions that you have an interest in pursuing legal remedies. Accordingly we have finalized an arrangement whereby I have transferred my copyright and choses in action in Western Australia to you pursuant to an agreement we made. You now have the capacity and authority to pursue Aida De Ceglie in this
2
Neville Jordan – Solicitor
matter. I may not prosecute a claim against her if she stops using my work, I will support you in any claim you make for ongoing breaches as a witness or otherwise.
It’s unfortunate this matter has arisen in these circumstances. The breach by Aida De Ceglie is flagrant and abusive. The contention that I did no more than provide you with a copy of other people’s work is both ignorant and insulting. As you know, you could’ve copied other people’s work yourself. There were some issues that we talked about, some priorities you wanted, some other things you didn’t want and we absorbed all of those aspects and implemented them. Also, we addressed the proposition that a foundation is United States phraseology and here in Australia, this is a trust. At least a trust is the most common methodology for doing it. It seems that Aida De Ceglie does not let the facts interfere with anything she says or does. I am tempted to pursue her myself. On the information you gave me, it seems very cut and dried.
From both a criminal and a civil perspective, breach of copyright catches all who are involved. It will be interesting to see whether Aida is charging a component for legal fees in circumstances where she hasn’t paid for any for the documentation. That’s a crime in copyright and breach of the Legal Practitioners Act, selling law work. Also, others who conspire in her commercial exploitation are at risk of both offences and civil liability. It really would depend on, in the overall context, what they knew and what they chose to do with that knowledge. The price they pay compared to yours will tell us that. She could be getting people into some difficulty. I wonder if she realizes that. I wonder if the others involved do.
If you require any further information or assistance from me, please contact me.
Best wishes
Returning to the appellant’s record of interview, the Magistrate noted:[5]
The defendant agreed that the word ‘Solicitor’ appeared on the top of each page. When asked why he put that word on the letter he said “Ah, to try and frighten, I knew this letter was being forwarded to De Ceglie…And so I used it to try to give it to Sonia to frighten De Ceglie and stop her exploiting Sonia’s materials.”
The defendant disputed the suggestion put to him by Mr Thredgold [the government investigator] that, by putting the word ‘Solicitor’ on the letter, he had held himself out as a solicitor who was entitled to practice law. The defendant said “…well, that’s a matter of opinion.”
The defendant said “I’ve held myself out as a solicitor and I am a Solicitor…I’m prohibited from practising Law in South Australia”. He then explained the process of forwarding any South Australian work which required a practising certificate to the local practitioner.
When asked whether he used that letterhead regularly the defendant said “No, it’s rare that I use it, it normally says LLB…and nobody cares…is says Solicitor and my position is…that I am a Solicitor who is prohibited from practicing in South Australia, it does not say and nor would it ever say admitted Practitioner of the Supreme Court of South Australia.”
The defendant said he did not swear oaths because he was not an admitted legal practitioner in South Australia and did not appear in court for anybody.
The defendant described Ms De Ceglie’s complaint as a complaint “from somebody who’s stolen off my IP and I’ve fronted her through Sonia…You don’t have to be a lawyer to own Proprietary Rights in Intellectual Property…It’s got nothing to do with being a lawyer, so but I mean its worked for her because we backed off…”
(footnotes omitted.)
[5] Persse v Jordan AMC-14-14686, 7 March 2016 at [101]-[106].
On my reading of the record of interview, the appellant was of the view that whilst he could not practise law within the territory of this State, the constraints upon him practising in this State did not prevent him advising on the laws of other jurisdictions, particularly those outside Australia. His logic is derived from the fact that he was struck off the roll of practitioners in this State as an act protecting the people of this State. Thus, his understanding is that he cannot service the South Australian legal market.
As mentioned, only the second of the elements of the offence as articulated by the Magistrate was in dispute. In any event the Magistrate formally recorded her satisfaction of elements one, three and four as being proven to her satisfaction beyond reasonable doubt.[6]
[6] Persse v Jordan AMC-14-14686, 7 March 2016 at [174]-[175]. See also Exhibit P2, Statement of Agreed Facts.
As to whether or not the appellant had held himself out as entitled to practise the profession of law, the Magistrate considered that the recipient of Exhibit P6, or any person who may have read it, would reasonably conclude that the writer was a South Australian solicitor who was considering taking legal action against Ms De Ceglie for alleged breaches by her of the “Copyright Act” and other legislation. The Magistrate rejected the appellant’s argument that the prosecution had to prove the identity of the recipient of Exhibit P6 and their interpretation of the same. She also rejected the appellant’s submission that the prosecution was required to call Ms Pavia and/or Ms De Ceglie. She said:[7]
I do not accept the defendant’s assertion that the Crown case in Count 1 was based ‘…solely on the existence of one word in the document. The word ‘Solicitor’.’ The defendant’s description of himself as a solicitor is one fact only. It is that description, taken together with the contents of the letter and the reasonable inferences which are open to be drawn from those contents, which constitutes the Crown case.
I do not accept the defendant’s submission that, in the absence of an endorsement on the letterhead which described the defendant as ‘an admitted practitioner of the Supreme Court of South Australia’, the alleged offence in Count 1 is not made out.
I find that a recipient or any person who may have read the letter would infer that the defendant was a solicitor who practiced in South Australia. This conclusion is reinforced by the contents of the letter.
I reject as implausible the defendant’s submission that the letter had ‘nothing to do with the defendant holding himself out as a solicitor’ and that ‘read as a whole and fairly observed, the letter…is simply an endeavour to prevent De Ceglie making a profit by illegal use of the defendant’s intellectual property…’
In my view, this argument is technical and artificial and flies in the face of the ordinary and plain meaning of the words used in the letter and the reasonable inferences which are open to be drawn from its contents.
I do not intend to address all of the defendant’s written submissions except to observe that many of the submissions are I think misconceived and demonstrate a fundamental misunderstanding of the elements of the offence as applied to Count 1.
Having considered the evidence, I am satisfied beyond reasonable doubt that the defendant, upon sending this letter to Ms Pavia, held himself out being entitled [sic] to practise the profession of the law, when he did not hold a practising certificate issued and in force under the Legal Practitioners Act, 1981(SA).
Does s 21 of the Legal Practitioners Act have an extra-territorial operation?
[7] Persse v Jordan AMC-14-14686, 7 March 2016 at [194]-[200].
As mentioned the appellant contends that if the sending of Exhibit P6 and its content amounted to holding himself out as entitled to practise the profession of law, that offence was not committed in South Australia and was not therefore caught by s 21(1) of the Legal Practitioners Act. Put slightly differently, no relevant holding out had occurred in this State; if any holding out occurred, it occurred in Western Australia where Exhibit P6 was received.
The legislative power of the Parliament of South Australia is contained in section 5 of the Constitution Act 1934 (SA). That section states:
5 – Powers of the Parliament
The Legislative Council and House of Assembly shall have and exercise all the powers and functions formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59, entitled “An Act for the better Government of Her Majesty’s Australian Colonies”.

Under s 14 of the Australian Colonies Government Act 1850 (Imp), the short title of which was An Act for the better Government of Her Majesty’s Australian Colonies, the Legislative Councils of the colonies of Victoria, Van Dieman’s Land, South Australia and Western Australia were empowered to:[8]
…make laws for the peace, welfare, and good government of the said colon(ies)y respectively…
[8] 13 & 14 Vict. c 59 (1850).
The power to make laws for the peace, welfare and good government of a State is a plenary power as ample as the legislative power of the Imperial Parliament.[9] The words, “peace, welfare and good government” are not words of restriction. They do not confer jurisdiction on the courts of the State to strike down legislation that is considered not to promote or secure the peace, welfare and good government of the State.[10]
[9] Australia Act 1986 (Cth) s 2; Australia Act 1986 (UK) s 2; Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1 at 9 (The Court); Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399 at [9] (Gaudron, McHugh, Gummow and Hayne JJ).
[10] Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at [46] (Gaudron, Gummow and Hayne JJ); Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1 at 10 (The Court).
That the legislative power of the Parliament of this State includes the power to legislate with respect to people, things or events beyond the territory of this State has long been settled[11] and was put beyond doubt by the Australia Acts.[12]
[11] Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36 at 52; Lipohar v The Queen (1999) 200 CLR 485 at [71] (Gaudron, Gummow and Hayne JJ).
[12] Australia Act 1986 (Cth) ss 2 and 3; Australia Act 1986 (UK) ss 2 and 3.
Whilst the legislative power of the South Australian Parliament is a plenary power and may be exercised with respects to persons, things or events beyond the territory of the State, it is not without restriction.
Generally speaking, there are two restrictions. First, the power is subject to any limitation expressed or implied in the Commonwealth of Australia Act 1900 (UK).[13] Second, a law made in the exercise of the legislative power of the State must be connected in some way to the body politic. Such connection is obvious where the law operates within the territory of the State. However, where a law of the State purports to have extra-territorial effect it will only be given such operation if there exists a relevant connexion between the State and the persons, events or things that it operates upon. In Port MacDonnell Professional Fishermen's Assn Inc v South Australia a unanimous High Court explained:[14]
It is now established that what is essential to the extra-territorial operation of a State law is a connexion between the enacting State and the extra-territorial persons, things and events on which a law operates. Union Steamship v King gave effect to that rule. It is unnecessary to rehearse the authorities relating to the extra-territorial operation of State legislation recently reviewed in that case, but it is desirable to recall that the Court agreed with the comments of Gibbs J. in Pearce v. Florenca that the test of
“a relevant connexion between the persons or circumstances on which the legislation operates and the State ... should be liberally applied, and that legislation should be held valid if there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State.”
(footnotes omitted.)
[13] Section 106. See also, Australia Act 1986 (Cth) s 5; Australia Act 1986 (UK) s 5; Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399 at [10] (Gaudron, McHugh, Gummow and Hayne JJ).
[14] (1989) 168 CLR 340 at 372 (The Court).
In determining whether or not a relevant territorial connexion exists between a law of the State and the person, events or things that it purports to operate upon, the test of relevance is to be liberally applied. A remote or general connexion is sufficient provided it is real.[15] In the context of a statutory offence, in Grannall v C Geo Kellaway and Sons Pty Ltd, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ described the necessary link as constituted of “acts or conduct of the defendant …[which] include elements sufficiently connected with New South Wales to enable the legislature of that State to deal with them”.[16]
[15] Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at [9] (Gleeson CJ), [48] (Gaudron, Gummow and Hayne JJ); Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1 at 14 (The Court); Port Macdonnell Professional Fisherman’s Association v South Australia (1989) 168 CLR 340 at 372.
[16] (1955) 93 CLR 36 at 52; Lipohar v The Queen (1999) 200 CLR 485 at [73]-[74] (Gaudron, Gummow and Hayne JJ).
All that said, the first question that needs be answered is whether, as a matter of construction the law of the State under scrutiny is intended by Parliament to be confined to the territory of the State or some part of the territory of the State. Here, before considering s 21(1) of the Legal Practitioners Act reference should be made to s 5F of the Criminal Law Consolidation Act 1935 (SA). It provides:
(1) The law of this State operates extra-territorially to the extent contemplated by this Part.
(2) However—
(a) this Part does not operate to extend the operation of a law that is expressly or by necessary implication limited in its application to this State or a particular part of this State; and
(b) this Part operates subject to any other specific provision as to the territorial application of the law of the State; and
(c) this Part is in addition to, and does not derogate from, any other law providing for the extra-territorial operation of the criminal law.
Thus under s 5F(1) of the Criminal Law Consolidation Act 1935, s 21(1) of the Legal Practitioners Act is, prima facie, to be given extra-territorial affect. The appellant points to no specific provision as to the territorial application of the law of this State that has the effect of overriding s 5F(1) within the meaning of s 5F(2)(b). The question then is whether anything contained in the Legal Practitioners Act operates either expressly or by necessary implication to dis-apply s 5F(1).
Section 21(1) of the Legal Practitioners Act provides:
(1) A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—
(a)is a local legal practitioner; or
(b)is an interstate legal practitioner.
Maximum penalty: $50 000.
“Local legal practitioner” and “interstate legal practitioner” are defined in s 5 of the Legal Practitioners Act as follows:
local legal practitioner means a legal practitioner who holds a practising certificate;
interstate legal practitioner means a natural person—
(a)who has been admitted as a legal practitioner in a participating State; and
(b)who holds an interstate practising certificate issued or given by a regulatory authority in that State or is entitled by admission or otherwise to practise the profession of the law in that State; and
(c)who is not a local legal practitioner; and
(d)whose principal place of legal practice is not this State;
The first observation to make is the obvious – s 21 is not expressly limited in its ambit to the territory of the State or any part of the State.
The text of s 21 must be construed in the context of the Legal Practitioners Act read as a whole and, in particular, Part 3 of that Act.
Part 3 Division 1 of the Legal Practitioners Act identifies who is entitled to be admitted and enrolled as a barrister and solicitor of this Court. Importantly, the entitlement to which s 15(1) refers is realised upon an order of this Court being made admitting the person to the Roll. The centrality of this Court in determining who may practise the profession of law must be understood in the light of this Court’s jurisdiction “in and for” the State[17] and the supervisory jurisdiction it enjoys over the practice of the profession of law in this State.[18] That is to say, neither Part 3 Division 1, nor this Court, are concerned with the question of who may practice the profession of law in other jurisdictions of the federation.
[17] Supreme Court Act 1935 (SA) s 17(2).
[18] Wentworth v NSW Bar Association (1992) 176 CLR 2389 at 251-252 (Deane, Dawson, Toohey and Gaudron JJ).
Part 3 Division 2 is concerned with the issue of practising certificates, their period of currency, conditions that may be imposed, and their renewal. Part 3 Division 2A empowers this Court to amend, suspend or cancel a practising certificate if certain grounds are established. Part 3 Division 2B governs the issue of a practising certificate where a show cause event has occurred and action is to be taken subsequent to the issue of a practising certificate. Part 3 Division 2C provides a supplementary power to immediately suspend a practising certificate on the application of the Attorney-General, the Law Society or the Legal Profession Conduct Commissioner.
Part 3 Division 3 may be considered as reinforcing Divisions 1, 2, 2A, 2B and 2C by the creation of a series of criminal offences.
In Part 3 Division 3A, the Legal Practitioners Act turns to deal with interstate legal practitioners. It is concerned with governing the practice of the profession of law in this State by such practitioners; hence, s 23A declares that an interstate legal practitioner who practises the profession of law in this State is an officer of this Court, s 23B applies to such practitioners practising in this State any limitation or condition on their entitlement to practise imposed by the law of the State in which they were admitted, and s 23C empowers a regulatory authority of this State to impose conditions on the practice of the profession of law by an interstate legal practitioner in this State. The requirements of Division 13 confirm this conclusion.
Enough has been said of Part 3 of the Legal Practitioners Act to make plain that where s 21(1) refers to a person as practising the profession of law or holding themselves out as entitled to practise the profession of law, it means practising the profession of law in this State, or holding themselves out as entitled to practise the profession of law in this State. So doing, the Act works symbiotically with the supervisory jurisdiction of this Court.
The Legal Practitioners Act does not define what it means to practise the profession of law. Subsections 21(2) to (4) provide some indication, but they are not, and do not purport to be, exhaustive. Clearly, it is not necessary that a practitioner be physically in the State to practise the profession of law in the State, or, indeed, necessarily do something in the State to be practising the profession of law in the State. Equally clearly, one need not do anything in the State to be holding oneself out as entitled to practise the profession of law in the State. Further, s 21(3a) contemplates that one can practise the profession of law in this State by the provision of legal advice or legal services relating to the law of another body politic within the federation.
It appears then that practising the profession of law in this State includes the delivery of legal advice and the provision of legal services in this State by both local and interstate legal practitioners and the giving of legal advice and the provision of legal services in another State or Territory by a local legal practitioner. In either instance the law subject of the advice or legal service may be the law of any of the integers of the federation.
In my view implicit in s 21(1) is the requirement that before a person may be convicted of the offence contained therein, the alleged act of practising the profession of law, or, any holding out of an entitlement to practise the profession of law, must be proven to amount to the practice of the profession of law in South Australia or the holding out of an entitlement to practise the profession of law in South Australia. To so conclude is to construe s 21(1) consistent with its intent, namely, to control those who may practise the profession of law in this State so as to ensure that the community is provided with legal advice and legal services by those who are appropriately trained and qualified.
If I am right in my construction of s 21(1), I do not think that it becomes a law that is by necessary implication limited in its application to this State within the meaning of s 5F(2)(b) of the Criminal Law Consolidation Act 1935. In my view s 5F(2)(b) is concerned with laws that either expressly or by necessary implication operate within the geographical territory of the State or a part of the State. Section 21(1) is not such a law. But the section, as I have construed it, does have its own territorial requirement. That requirement, when satisfied, would always satisfy the common law test because a person holding themselves out as entitled to practise the profession of law in South Australia would engage in “acts or conduct … includ[ing] elements sufficiently connected with [South Australia] to enable the legislature of that State to deal with them”.[19] That is the position here. Below in dealing with the third question I set out my reasons for agreeing with the Magistrate that it may be inferred from Exhibit P6 that the appellant held himself out as entitled to practise the profession of law in South Australia. That conclusion may be drawn if for no other reason than the appellant’s styling of himself as a solicitor in South Australia (which may be inferred from the contact details given), and, from where he provides the services of a solicitor.
[19] (1955) 93 CLR 36 at 52. See also Lipohar v The Queen (1999) 200 CLR 485 at [73] (Gaudron, Gummow and Hayne JJ).
Turning to s 5G of the Criminal Law Consolidation Act 1935, it provides:
5G—Territorial requirements for commission of offence against a law of this State
(1)An offence against a law of this State is committed if—
(a) all elements necessary to constitute the offence (disregarding territorial considerations) exist; and
(b)   the necessary territorial nexus exists.
(2) The necessary territorial nexus exists if—
(a) a relevant act occurred wholly or partly in this State; or
(b)   it is not possible to establish whether any of the relevant acts giving rise to the alleged offence occurred within or outside this State but the alleged offence caused harm or a threat of harm in this State; or
(c)   although no relevant act occurred in this State—
(i) the alleged offence caused harm or a threat of harm in this State and the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred; or
(ii) the alleged offence caused harm or a threat of harm in this State and the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this State; or
(iii)the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred and the alleged offender was in this State when the relevant acts, or at least one of them, occurred; or
(d)   the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which the necessary territorial nexus would exist under one or more of the above paragraphs if it (the other offence) were committed as contemplated.
“Relevant act” is defined in s 5E(1) as meaning :
(a)   an act or omission that is, or causes or contributes to, an element of the offence; or
(b)   an act or omission that is, or causes or contributes to, something that would, assuming the necessary territorial nexus existed, be an element of the offence; or
(c)   a state of affairs that is an element of the offence, or would, assuming the necessary territorial nexus existed, be an element of the offence.
Under subsections 5H(1) and (2), for an offence against the law of the State, the existence of the necessary territorial connection is conclusively presumed unless rebutted by the accused on the balance of probabilities. To succeed on the hearing of this appeal the appellant must establish that, on the evidence, it was not open to the Magistrate to be satisfied that the presumption was not rebutted. His argument before me was that there is no evidence of the location from which Exhibit P6 was sent as being in South Australia. That argument was mounted in opposition to the contention of the respondent that the letter was composed in South Australia and sent by email to Western Australia from South Australia. It is true that in his record of interview the appellant does not go so far as to state expressly that he emailed the letter to Ms Pavia from his home in South Australia, however, the entire interview may be considered as proceeding on the understanding that what is discussed is what he does from this State. In my view it was open to the Magistrate to conclude on the balance of probabilities that a relevant act had occurred in this State, namely, the composition and communication of Exhibit P6 (being acts that caused or contributed to an element of the offence). Alternately, there exists a state of affairs in this State that, assuming the necessary territorial nexus existed, is an element of the offence that the appellant is not a local legal practitioner nor an interstate legal practitioner. If either of these conclusions are wrong, in any event, the burden was on the appellant to rebut the presumption. He did not do so. It is not sufficient to point to an absence of evidence adduced by the prosecution to establish a lack of a sufficient territorial nexus.
I dismiss the appellant’s grounds of appeal relating to the first question.
Was the letter admissible?
The appellant submitted that Exhibit P6 was inadmissible on the grounds that it was irrelevant. His argument had two parts; first, he submitted that a holding out for the purposes of s 21(1) could not be established without proof from someone that the accused had held him or herself out to them. That is, for an accused to hold him or herself out within the meaning of s 21(1) the person to whom he or she did so had to apprehend that that is what had occurred. Exhibit P6, he said, was irrelevant to proving such a holding out. Second, even if the first aspect to his argument was wrong, Exhibit P6 did not prove a holding out in any event.
Exhibit P6 was an item of real evidence. Its content was not admitted to prove the truth of anything asserted in it. Rather it was tendered and used for the fact of its content. It mattered not whether anything asserted therein was true. What mattered on the prosecution case was that it was written, communicated and intended to convey the meaning it bore, read as a whole, irrespective of whether the content was true.
As an item of real evidence the admissibility of Exhibit P6 turned on two things; first, that it was relevant to proof of an ultimate fact or a fact in issue, and, second, its authentication as being the letter that the prosecution contended it was. The latter was established by leading admissions made by the appellant in his interview with the government investigator. The appellant said:[20]
[20] Exhibit P3, Record of Interview, p 11.
THREDGOLD:  And I’m showing you, it’s a two page letter addressed to Sonia Pavia, post office box…
JORDAN:13^th of August 2013. Yep.
THREDGOLD:  O.k.
JORDAN:It wasn’t posted it was emailed.
THREDGOLD:  So you emailed that to Sonia Pavia?
JORDAN:To Sonia.
THREDGOLD:   Alright, I’ll just get you to confirm, it’s dated the 13^th August 2013, so when was it actually sent, this letter?
JORDAN:Within a week of that.
THREDGOLD:  O.k. Alright and that’s, I’m showing you page 2 down the bottom, is that your, is that an electronic signature or?
JORDAN:Yep.
THREDGOLD:   Yep, so it’s your signature. That’s correct?
JORDAN:Yep, but I don’t, I don’t look to, I don’t look to detach myself, if it’s sent by me and got that on it, I acknowledge it as mine.

With respect to the relevance of Exhibit P6, the authorities discussed below show that an accused holds themself out where they represent that they enjoy a particular status. The mere fact that Exhibit P6 is headed, “Neville Jordan – Solicitor”, indicates that it has some capacity to prove that the appellant held himself out as a person entitled to practise the profession of law in this State. Once Exhibit P6 is capable of having some bearing on the existence of an ultimate fact – whether the appellant held himself out – it is relevant and admissible unless subject of an automatic rule of exclusion or discretionary exclusion.[21]
[21] Smith v The Queen (2001) 206 CLR 650 at [6]-[7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Capacity to prove a fact should not be confused with proof of a fact. They are not the same thing. A fact may tend to prove a fact in issue or an ultimate fact when taken with other facts, but, taken in isolation, it may be incapable of doing so. That fact may “rationally affect (directly or indirectly) the assessment by the tribunal of fact … of the probability of the existence” of an ultimate fact or fact in issue is all that is required to establish that it is relevant.[22]
[22] Smith v The Queen (2001) 206 CLR 650 at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Once it is accepted that Exhibit P6 had some capacity to prove the act of holding out, that was sufficient for it to be admitted upon being authenticated. Even if the appellant’s understanding of what amounts to holding out for the purposes of s 21(1) is accepted, Exhibit P6 remains relevant and admissible.
Before leaving this question I add, that if I am wrong and the letter was used in some way for a hearsay purpose it was nonetheless admissible upon proof of its authentication as a statement against interest.[23]
[23] Burns v The Queen (1975) 132 CLR 258 at 262 (Barwick CJ, Gibbs and Mason JJ).
I dismiss the appellant’s grounds of appeal relating to the second question.
Did the appellant hold himself out as being entitled to practise the profession of law in this State?
Before dealing with the arguments made in relation to this question it is necessary to first determine what amounts to a holding out for the purposes of s 21(1) of the Legal Practitioners Act.
The physical act of holding out is not defined by the Legal Practitioners Act. In Horseman v Nairn Murray CJ heard an appeal from a charge of holding out laid under s 35 of the Medical Practitioners Act 1919 (SA).[24] Section 35 provided:[25]
No person, not being registered under this Act, shall either directly or indirectly, by any name, word or letter, or by any title or designation, whether expressed in words or by letters, or partly in one and partly in the other, or by any sign, device, article or other thing whatsoever, or by any other means whatsoever, whether (a) by having the same attached to or exhibited on, in, at or near his place of business or residence, or any other place whatsoever, or (b) in any letter, newspaper, magazine, book, programme, circular, handbill, placard, card, letter paper, billhead, receipt form or invoice or any document or paper used in connection with any business, practice or profession, or (c) in any other way whatsoever, advertise or hold himself out as being, or pretend to be, a doctor of medicine, licentiate in medicine or surgery, master in surgery, bachelor of medicine or surgery, doctor, legally or duly qualified or registered medical practitioner, accoucheur or other medical or surgical practitioner, or the holder of any other degree, diploma, licence or certificate in medicine or surgery.
[24] [1926] SASR 1.
[25] Horseman v Nairn [1926] SASR 1 at 2.
The then Chief Justice considered a holding out for the purposes of s 35 as being “merely a representation” and commented in relation to a brass plate exhibited near the defendant’s place of business describing him as, “Dr H W Nairn” that “if that is not a representation by the defendant that he was a “doctor,” I do not know what else it could be”.[26] On appeal the Full Court took no different view on this issue.[27]
[26] Horseman v Nairn [1926] SASR 1 at 4.
[27] [1926] SASR 268.
Subsequently, in Steel v Mortlock Walters J had to consider what amounted to a holding out for the purposes of s 23 of the Land Agents Act 1955 (SA).[28] That section provided:
A person (whether an individual or a corporation) shall not carry on business, or by any means whatsoever hold himself out, as a land agent unless he is a licensed land agent.
[28] [1971] SASR 289.
Walters J agreed with Murray CJ in Horseman v Nairn that to hold oneself as occupying a particular status or position was to represent oneself to others as doing so.[29]
[29] [1971] SASR 289 at 291.
I see no reason to approach the notion of a holding out for the purposes of s 21(1) of the Legal Practitioners Act any differently.
In Horseman v Nairn Murray CJ also accepted that parol evidence was admissible to prove that the reference on the brass plate to the appellant being a doctor was used in a sense falling within the ambit of s 35.[30] On appeal, Poole J held that whilst the intention of the author of a statement relied upon by the prosecution as amounting to a holding out was irrelevant to the question of whether there was, in fact, a holding out, the “whole of the surrounding circumstances, so far as they may reasonably be supposed to be present to any person reading the sign, must be looked at”.[31] Not dissimilarly Napier J held:[32]
… that the circumstances under which a sign is exhibited are not irrelevant in relation to the question of the sense in which it will be understood by a sufficient number of the public to constitute a holding-out within the meaning of sec. 35. If the proper inference from this evidence should be that a business is being carried on, it may be reasonable to infer that there are people who are aware of its nature, and to them, at least, the title, as it is exhibited on the plate, will be capable of only one meaning. It is not necessary for the purpose of a holding-out that the sign should be intelligible to everyone in the world. It is sufficient that it should be intelligible to those who have the information which enables them to appreciate its significance. The Pharmaceutical Society of Great Britain v Mercer, [1910] 1 K.B. 74 seems to support the admission of similar evidence on some such grounds.
[30] [1926] SASR 1 at 4-5.
[31] Horseman v Nairn [1926] SASR 268 at 276.
[32] Horseman v Nairn [1926] SASR 268 at 279-280.
Again I see no reason arising from the text of s 21(1) to proceed any differently. Thus the physical act said to constitute a holding out is to be considered in the context of the surrounding circumstances to the extent that those circumstances inform the meaning to be given to the act. That meaning, or inference drawn from the conduct viewed in context, is that which the ordinary person would attribute to the act, or draw from it, so viewed. Hence in Horseman v Nairn Poole J referred to what the plate meant to the members of the public to whom it was addressed,[33] an approach adopted by Walters J in Steel v Mortlock.[34]
[33] [1926] SASR 268 at 276.
[34] [1971] SASR 289 at 294.
I proceed on this basis. Doing so means accepting that it is not necessary to the proof of the offence that any person to whom the relevant holding out is made apprehended such holding out. That is not to say that there need not be a holding out to someone - there must be - but proof of holding out is not dependent upon the appreciation of the person or persons to whom the impugned act of holding out is directed.
As to proof of the fact of receipt of the letter, the government investigator, Mr Thredgold, gave evidence of the receipt of Exhibit P6 in Western Australia by Ms De Ceglie from Ms Pavia, of Ms De Ceglie complaining to the Law Society of this State and of her supplying Exhibit P6 to the Law Society.[35] That evidence was not objected to. In fact the appellant declined to cross-examine the government investigator stating that he did not challenge anything that he had said in evidence.[36] Consistent with the evidence given by the government investigator, the appellant in his record of interview conceded that he understood Ms Pavia to have forwarded Exhibit P6 on to Ms De Ceglie.[37]
[35] Transcript, 3 August 2015, pp 35-36.
[36] Transcript, 3 August 2015, p 46.
[37] Exhibit P3, Record of Interview, pp 9-10.
Turning to the appellant’s arguments, his starting point was the contention that to establish a holding out it had to be proven that he had done something usually done by a solicitor in such a way as to give rise to the reasonable inference that he was a solicitor. Accepting this, Exhibit P6, he contended, was incapable of proving that he had held himself out in that sense. To make good his contention the appellant proceeded to analyse each paragraph in turn. Ultimately he argued that what was missing was any reference to an act that one would normally expect of a solicitor – there was nothing in Exhibit P6 such as a request for, or confirmation of, instructions, or any reference to legal process. The appellant characterised the letter as containing no more than a discussion of opinions between himself and someone for whom he did some work and with whom he had become friends. He added that nowhere in the letter did he state to Ms Pavia that he would be prepared to act for her and institute proceedings against Ms De Ceglie, nowhere did the letter purport to warn Ms De Ceglie as a solicitor might, and nowhere in the letter did he purport to do what a solicitor does.
Understandably the respondent points to the appellant styling himself in his letterhead as being a solicitor. That fact, taken with the adjacent South Australian address and contact details, supports an inference of the appellant holding himself out as entitled to practise the profession of law in South Australia. That inference gathers strength, it was submitted, when one has regard to the content of the letter.
It must be borne in mind that the offence as charged was not that the appellant, who by his own admission was not a local legal practitioner nor an interstate legal practitioner, did practise the profession of law in this State. Rather, it was that he held himself out as being entitled to practise the profession of law in this State. In this regard s 21(1) may be considered as either creating more than one offence or creating one offence that may be committed in a number of ways. Either way, having regard to the offence as charged, authorities dealing with what is meant by practising law, or engaging in legal practice, are of little assistance in determining whether he held himself out as being entitled to practise the profession of law.
I turn to Exhibit P6. In my opinion the juxtaposition of the appellant’s name and the noun “Solicitor” in the top right hand corner of each of the two pages of the letter conveys, and is calculated to convey, to the ordinary reader that the appellant was a solicitor. Nothing in the form or content of the letter qualifies that implication or representation in any way. It is not the case that the name as stated, taken with the noun “Solicitor” used in the singular, could be considered the name of a partnership or corporate body. If there was any doubt it is dispelled by the appellant’s name and signature appearing at the foot of the letter.
Further, it is a current representation in the sense that as at the date of the letter the appellant is to be understood by the ordinary reader as being a solicitor. That in turn carries the necessary implication that as at the date of the letter the appellant was a member of the legal profession entitled to practise as such.
The placement of the appellant’s contact details in the margin immediately beneath his name serves the obvious purpose of telling the reader where and how to locate him. More than that, it informs the reader where the appellant as a solicitor practises as such. No mention is made of the address being South Australian or the abbreviation SA, but that does not matter as the suburb and postcode directs the reader to this State as would the telephone number provided.
In my view the ordinary member of the community would understand any reference to a person as being a solicitor as indicating that the person referred to is a practising member of the legal profession from whom one may obtain legal advice and legal services.
In Taylor v Richardson, Mr Richardson was suspended for a period of two years from practising as a solicitor. [38] During that period on two occasions he witnessed documents for a friend who was unaware of his suspension in the course of assisting that friend to raise a reversion on the friend’s father’s will, describing himself in doing so as “solicitor”. Consequently Mr Richardson was charged with having wilfully used, whilst not in possession of a practising certificate, a title or description implying that he was qualified to act as a solicitor. In issue was the inference that could be drawn from Mr Richardson’s use of the description or title, “Solicitor”. In the Magistrates Court he successfully argued as part of a no case to answer submission that as his name remained on the Roll he was in fact a solicitor. On appeal Branson J said:[39]
In my view, if a man is approached upon a matter of business and describes himself as a solicitor, without any qualification of those words, he is holding himself out as a solicitor qualified, and recognised by law as qualified, to act as such.
[38] [1938] 2 All ER 681.
[39] Taylor v Richardson [1938] 2 All ER 681 at 683-684.
Humphreys J agreed, adding:[40]
I certainly would not myself express the opinion that the use of the word “solicitor” by a person whose name is on the roll of solicitors would necessarily be any indication that that person was qualified to act – that is to say, had a practising certificate. On the other hand, it must be perfectly obvious that there are circumstances in which the mere statement by a person that he is a solicitor is an indication, and is intended as an indication, that he is a solicitor for the purposes for which he is discussing some matter with the other person. In other words, that he has a practising certificate, and is entitled to practise.
[40] Taylor v Richardson [1938] 2 All ER 681 at 684.
The third member of the Court was Du Parcq J. He said:[41]
When the law speaks of a “name, title, addition, or description implying” certain things, it is essential to look at the circumstances in which the name or title, or whatever it may be, is used, in order to see what it does imply. There might, as it seems to me, be occasions where a retired solicitor who had no practising certificate might describe himself as a solicitor, and the circumstances would be such that nobody could say that the use of the title implied that he was at the time qualified to act. On the face of it, however, and subject to any evidence that may be called to contradict the facts at present before this court, I agree with the other members of the court that it is difficult to imagine any case in which it more clearly appeared that the title was so used as to imply that the respondent was qualified to act as a solicitor.
[41] Taylor v Richardson [1938] 2 All ER 681 at 685.
Contrasting the circumstances in Taylor v Richardson with those in this case it may be observed, first, unlike Mr Richardson, the appellant is not a solicitor. His name was removed from the Roll of Practitioners in this State in 1998.[42] Second, nothing in either the form or content of the letter qualifies the appellant’s asserted status as being a solicitor. Third, nothing in the circumstances surrounding the composition and communication of the letter qualifies the appellant’s asserted status as being a solicitor.
[42] Exhibit P2, Statement of Agreed Facts.
Lastly, nothing in the content of the letter detracts from the implication to be drawn from the use of the word “Solicitor”. If anything, the subject matter, language and terminology, reference to “two of my lawyers”, and opinions expressed regarding the application and breach of the Copyright Act reinforce the implication.
In my view, for the reasons I have given, the Magistrate was right to conclude that in communicating Exhibit P6 to Ms Pavia the appellant held himself out as being entitled to practise the profession of law in this State.
I dismiss the appellant’s grounds of appeal relating to the third question.
Does s 21(3a) of the Legal Practitioners Act authorise the content in the letter?
The appellant submitted that 21(3a) of the Legal Practitioners Act, which is reproduced above, operated to exclude his conduct from the reach of the offence contained in s 21(1) on the basis that any legal advice or legal services provided “relat[ed] to the law of a place outside Australia”. In response counsel for the respondent submitted that s 21(3a) had no application because the provision addresses conduct or work performed as opposed to a “holding out”.
This argument may be dealt with quite shortly. I accept the respondent’s submission. Section 21(3a) speaks to s 21(1) insofar as s 21(1) prescribes the practice of the profession of law, but not otherwise. That is, a person does not practise the profession of law in South Australia within the meaning of s 21(1) if he or she provides legal advice or legal services in relation to the law of a place outside Australia. Section 21(3a) does not excuse the person who holds themselves out as entitled to practise the profession of law in this State just because he or she also provides legal advice or legal services in relation to the law of a place outside Australia. The fact would remain that despite the nature of the work done the individual still holds him or herself out within the meaning of s 21(1).
I dismiss the appellant’s grounds of appeal relating to the fourth question.
Was the sentence imposed by the learned magistrate manifestly excessive?
Before the Magistrate the appellant submitted that he should be dealt with without the recording of a conviction under s 16 of the Criminal Law (Sentencing) Act (1988) (the Sentencing Act). In support of that contention, and in mitigation generally, he pointed to the absence of any harm caused by his actions, the fact that he did not benefit financially, his remorse and contrition, and his cooperation with the investigation.
The Magistrate determined:[43]
[43] Persse v Jordan AMC-14-14686, 20 May 2016 (Remarks on Penalty) at [53]-[62].
Penalty
I will deal first with the application not to record a conviction.
In my view the circumstances which led to you being struck off the Roll of Practitioners is a relevant consideration in assessing the application.
Past decisions of the Supreme Court of South Australia make it plain that the discretion not to record a conviction should be exercised sparingly in respect of social and regulatory offences. In dealing with regulatory offences the deterrent aspect of punishment is to be emphasised.
In relation to section 16, the assumption that underlies the section is that in the ordinary course a conviction will be recorded, unless good reason exists not to do so.
That said, there will of course be regulatory offences where circumstances are such that it is appropriate to sentence a defendant without recording a conviction. I do not consider this to be such a case.
By preparing and sending the letter you embarked upon a deliberate course of action which was specifically designed to frighten the intended recipient. When this aspect is considered together with the importance of general and personal deterrence in enforcing the relevant provision, I consider that the use of s 16 of the Criminal Law Sentencing Act, 1988 would be inappropriate.
In reaching this conclusion I have taken into account the fact that you did not gain financially and that Ms De Ceglie did not suffer any particular damage or loss. However, conduct of this nature tends to undermine a central object of legislation which is designed to regulate the practice of law. As stated by the prosecution, one of those objectives is to ensure that those who practice law are appropriately authorised and insured. Those who breach the Act by holding themselves out as entitled to practice law when they are not, as you did, tends to undermine public confidence in the legal profession and the administration of justice.
As to penalty, I take into account the relevant sentencing considerations which have been mentioned above. You are to be sentenced on the basis that this was an isolated offence from which you made no financial gain and which caused no direct harm or loss to Ms De Ceglie.
I find that there is no good reason to refrain from recording a conviction. Accordingly, a conviction will be recorded.
You are discharged on a bond to be of good behaviour for a period of 12 months on the following conditions:
a.That you perform 80 hours of community service; and
b.That you report within seven days to the Department of Community Corrections at Adelaide.

In this Court the appellant submitted that the sentence imposed was excessive. He relied upon his outline of submissions. It contained the following:
57. In the context of sending a letter to a person with whom the appellant has no issues and discussing points regarding what is believed to be a misappropriation of the property of either or both of them, this penalty is excessive. That is all the appellant did.
58. In the context of the ambiguity and uncertainty of the relevant principles involved and their application to the situation, including the internet at large, the extent of aggravation is exceptionally minimal.
59. No one presents contending any harm.
60. The penalty is excessive and not commensurate with the harm caused (lack of) or the extent of criminality.
61. The appellant contends the prosecution is sufficient penalty and there should be [no] further penalty.
The appellant’s submission on appeal is that the sentence imposed was plainly wrong. That is, he points to no specific error in the application of s 16 of the Sentencing Act nor in the determination of the length of the bond and community service imposed under s 39 of the Sentencing Act, but points to the outcome as being plainly excessive such that this Court must conclude that the sentencing discretion has miscarried.
I reject the appellant’s characterisation of his conduct as amounting to no more than a discussion “regarding what is believed to be a misappropriation of the property of either or both of them”. In his interview with the government investigator the appellant admitted that he used the letterhead describing him as a solicitor in drafting and communicating Exhibit P6 “to try and frighten, I knew this letter was being forwarded to De Ceglie”. The appellant had been struck off the Roll by this Court after practising for near on twenty years. He knew that he could not practise the profession of law in this State. He does not assert otherwise. However, he deliberately sought to bring to bear the weight of the office of a practitioner of this Court. The fear he hoped to instil in Ms De Ceglie was to be derived from the fact that described as a solicitor his opinion as to her breach of the copyright laws would likely be taken most seriously. This deliberate action was one of the main reasons leading the Magistrate to conclude that it would be inappropriate not to impose a conviction. In my view, she was right to place significant weight on this factor.
The Magistrate also relied upon the general proposition that in sentencing for regulatory offences the general deterrent value of the imposition of a conviction is particularly important. In Chehade v Commissioner for Consumer Affairs I dealt with this sentencing principle. I said:[44]
[44] (2016) 125 SASR 223 at [60] to [63].
In Liddy v Cobiac, Bray CJ said of s 4 of the Offenders Probation Act 1913 (SA), a predecessor to s 16:
... Section 4 of the Offenders Probation Act is a merciful provision which, in my view, has prominently in view among its objects, though not of course exclusively, the reformation of the offender. Its application, it seems to me, generally speaking, should be less ready when the charge relates to a breach of social legislation, where the preventive and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied. ...
Regulatory offences, generally speaking, take on the form of absolute or strict liability offences. Such offences call the general public to the strict observance of the norm of conduct prescribed because the Legislature has determined that such a high duty of observance should be imposed with respect to the subject matter of the offence in the public interest. Roscoe Pound has said:
... The good sense of courts has introduced a doctrine of acting at one’s peril with respect to statutory crimes which expresses the needs of society. Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals. ...
It was these sorts of sentiment that underpinned the comments of Doyle CJ in Hemming v Lukin, where the Chief Justice said in relation to s 16 and its application to regulatory offences:
I am cautious about applying such statements literally, but I think, in the present case, the thrust of them is that in the case of an offence under s 69 [of the Fisheries Act 1982(SA)] where the offence is committed regardless of any question of fault and intent, one would look, in the case of such an offence, as a basis for leniency, for positive efforts directed at preventing or avoiding the commission of the offence.
In other words, leniency extended under s 16 in relation to a regulatory offence, bearing in mind the social reasons justifying the creation of the offence as one of strict or absolute liability, will likely turn on there being efforts made to avoid committing the offence for which the accused is to be sentenced and the nature of such efforts. To so hold is to recognise little more than that s 16 operates in the context of sentencing courts being required to impose penalties that reflect the seriousness of the offending. Hence Kourakis CJ’s observation in Singh v Police that the force of the submission that the preventative and deterrent aspects of recording a conviction assume greater importance in respect of regulatory offences is much reduced when that regulatory offence is expiable.
(footnotes omitted.)
I remain of this view.
Here it was no doubt easy for the appellant to avoid committing the offence. In his record of interview he admitted that it was rare that he used the letterhead and that his normal letterhead did not feature the word “Solicitor” but in its place referred to his having obtained an LLB degree. I have already referred to his deliberate decision to use the letterhead.
I consider that it was clearly open to the Magistrate to proceed as she did. In view of the appellant’s knowledge and motivation, the offending could not be considered trifling. Nor were there extenuating circumstances, and nothing about the appellant’s character, age or physical or mental condition suggest that it was inappropriate to impose a conviction.
Turning to the bond imposed under s 39 of the Sentencing Act and its conditions, I do not think the imposition of such penalty can be said to be plainly wrong in view of the gravity of the appellant’s conduct. At the risk of sounding repetitive, his deliberate decision to use the letterhead describing himself as a solicitor knowing that he was not entitled to practise the profession of law in this State was calculated to cause fear and anxiety. I agree with the Magistrate that such conduct has the tendency to undermine the administration of justice in this State.
True it is that the appellant has expressed remorse, is contrite, and cooperated with the investigation. It is also the case that this Court has not been advised of any ongoing harm resulting from the appellant’s actions. Nonetheless, I do not think it can be said that the Magistrate was plainly wrong to punish the appellant by requiring that he enter into a bond to be of good behaviour for 12 months and to perform 80 hours of community service.
I would dismiss the appeal against sentence.
Conclusion
I would dismiss the appeal against conviction and the appeal against sentence.