Legal Practice Board v Frichot
[2006] WASC 230 (S2)
LEGAL PRACTICE BOARD -v- FRICHOT [2006] WASC 230 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 230 (S2) | |
| Case No: | CIV:2523/2004 | 7 AUGUST & 22 NOVEMBER 2006, 13 MARCH & 18 APRIL 2007 | |
| Coram: | HASLUCK J | 4/10/06 | |
| 18/04/07 | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Penalty for contempt imposed | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PRACTICE BOARD MAURICE EUGENE FRICHOT |
Catchwords: | Practice and procedure Committal for contempt of court Statutory provisions and legal principles bearing upon punishment for contempt of court Matters for consideration in assessment of appropriate penalty Five separate offences of contempt require element of general and personal deterrence in sentence Authority of Court to punish summarily for contempt of court Separate consideration of each offence and application of totality principle appropriate Fine imposed in respect of each offence Turns on own facts |
Legislation: | Legal Practice Act 2003 (WA), s 123, s 250 Legal Practitioners Act 1893 (WA), s 76, s 77, s 81 Rules of the Supreme Court 1971 (WA), O 55 Sentencing Act 1995 (WA), s 3(3), s 6, s 35 |
Case References: | Heedes v Legal Practice Board [2005] WASCA 166 Kennedy v Lovell [2002] WASCA 226 Legal Practice Board v Frichot [2006] WASC 230 Legal Practice Board v Frichot [2006] WASC 230(S) Legal Practice Board v Mullaly [2003] WASC 225 Legal Practice Board v Ridah [2004] WASC 263 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Wood v Staunton [No 5] (1995) 86 A Crim R 183 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 18 APRIL 2007 FILE NO/S : CIV 2523 of 2004
- CIV 2524 of 2004
CIV 2525 of 2004
CIV 2526 of 2004
CIV 2527 of 2004
- Applicant
AND
MAURICE EUGENE FRICHOT
Respondent
(Page 2)
Catchwords:
Practice and procedure - Committal for contempt of court - Statutory provisions and legal principles bearing upon punishment for contempt of court - Matters for consideration in assessment of appropriate penalty - Five separate offences of contempt require element of general and personal deterrence in sentence - Authority of Court to punish summarily for contempt of court - Separate consideration of each offence and application of totality principle appropriate - Fine imposed in respect of each offence - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA), s 123, s 250
Legal Practitioners Act 1893 (WA), s 76, s 77, s 81
Rules of the Supreme Court 1971 (WA), O 55
Sentencing Act 1995 (WA), s 3(3), s 6, s 35
Result:
Penalty for contempt imposed
Category: B
Representation:
Counsel:
Applicant : Mr D Wallace
Respondent : Mr T F Percy QC & Mr J A Davies
Solicitors:
Applicant : Minter Ellison
Respondent : Benjamin & De Lestang
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Case(s) referred to in judgment(s):
Heedes v Legal Practice Board [2005] WASCA 166
Kennedy v Lovell [2002] WASCA 226
Legal Practice Board v Frichot [2006] WASC 230
Legal Practice Board v Frichot [2006] WASC 230(S)
Legal Practice Board v Mullaly [2003] WASC 225
Legal Practice Board v Ridah [2004] WASC 263
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Wood v Staunton [No 5] (1995) 86 A Crim R 183
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- HASLUCK J:
Introduction
1 By this application the Legal Practice Board seeks orders that the respondent, Maurice Eugene Frichot, be punished for contempt of court.
2 It is proposed by the applicant in its minute of proposed orders dated April 2006 that the respondent be sentenced to a term of imprisonment for certain of the infringements. It is therefore necessary that I deal with the issues before me at some length.
3 The Legal Practice Board by five discrete originating motions sought orders that the respondent be punished for contempt of the Supreme Court. In each case it was said that he had engaged in legal business while not being a duly certificated legal practitioner. The subject motions were supported by the affidavits of various complainants setting out the circumstances of each matter.
4 As appears from the lengthy written judgment now described as Legal Practice Board v Frichot [2006] WASC 230 I was satisfied that the facts and matters said to constitute a contempt of court in each case had been established beyond reasonable doubt. I will call this the "2006 judgment".
5 The respondent had been representing himself during the course of the proceedings but failed to appear at the hearing of the matter on 7 August 2006. Towards the end of the 2006 judgment I said that the respondent should be afforded an opportunity to be heard as to penalty before any penalty was imposed.
6 Programming orders to that end were then made which included provision for personal service upon the respondent of the reasons for decision and the applicant's submissions as to penalty. At that stage the respondent instructed solicitors to act on his behalf.
7 The respondent's solicitors entered an appearance. They took out a chamber summons with a view to setting aside the orders made by Hasluck J in Chambers on 4 October 2006. I will call these the "4 October orders".
8 As appears from my supplementary judgment handed down on 13 March 2007, the application to set aside the 4 October orders was dismissed. This is now reported as Legal Practice Board v Frichot [2006] WASC 230(S). I will call this the "supplementary judgement".
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9 The matter was then listed on 18 April 2007 for the hearing of submissions as to penalty. On that occasion the respondent was represented by Senior Counsel.
10 Before turning to the submissions made by the respected parties let me briefly recapitulate the essentials of the various complaints and describe the background to the matter.
Background
11 The background to the matter is that the respondent was for many years a certificated legal practitioner and a partner in a leading law firm in Perth. However, on 24 November 2000 he pleaded guilty in the District Court to various stealing offences committed between 18 December 1997 and 27 March 2000 in respect of funds stolen from the Australian Paralympic Committee.
12 He was sentenced to an effective term of imprisonment of three and a half years with eligibility for parole. He was struck off the roll of practitioners pursuant to order of the Full Court made on 18 June 2001.
13 In due course the respondent was released from prison. Towards the end of January 2002, he established a debt collection agency under the name of All Debts Process. He also began working on a part-time basis with a businessman named Colin Ritchie and the latter's group of companies.
14 It was later alleged by the Legal Practice Board that in the course of these activities the respondent carried out work in connection with the administration of the law contrary to certain provisions of the Legal Practitioners Act 1893 (WA).
15 Towards the end of 2004 the Legal Practice Board issued five originating motions seeking orders that the respondent be punished for contempt of court. There where three motions concerning the Grover matters; one motion concerning the Hughes matter; and one motion concerning the debt collection agency matter.
16 The facts and matters underlying the complaints reflected in the five subject motions and related affidavits are described at length in the 2006 judgment and in the supplementary judgment. In the latter judgment the respondent's stance in relation to the matters in issue was set out fully with reference being made to the affidavits filed on his behalf. There is
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- no need for present purposes to repeat at length what was said in those judgments. A brief recapitulation will be sufficient.
17 As to the first of the three Grover matters being CIV 2531 of 2004 I found at par 100 of the 2006 judgment that the respondent's letter dated 22 August 2002 established clearly that he held himself out as a person with legal qualifications who was prepared to and did offer legal advice to Mr and Mrs Grover as to how they should deal with a problem concerning mortgage payments due to Oakleigh.
18 It was clear that the respondent was involved in the preparation of legal writings and was minded to and did charge for his services in the manner of a legal practitioner.
19 As to the second Grover matter, CIV 2524 of 2004, the essential elements of the originating motion were that the respondent acted on instructions from Colin Ritchie and Solitaire Investments Pty Ltd to lend money to Hartwood Nominees and Mr and Mrs Grover. In doing so he prepared or caused to be prepared a letter of loan, a bill of sale over livestock or wool and a mortgage. Such documents were dated 16 August 2002. I found that these allegations had been substantiated.
20 As to the third Grover matter, CIV 2525 of 2004, the essential elements of the originating motion were that the respondent rendered legal advice to the Grovers on behalf of Hartwood nominees in relation to an unpaid fuel account. Further, in that regard it was said, and so found, that he provided written legal advice dated 30 August 2002 and oral legal advice on the same date.
21 The Hughes' matter, being CIV 2526 of 2004, concerned an allegation that the respondent acted on instructions from Mr Ritchie and Felspar Quarries Pty Ltd to lend moneys to Beverley and Christine Hughes. It was alleged that the respondent prepared the documents mentioned in the originating motion. In essence it was alleged that in acting on instructions from Ritchie and Felspar Quarries to make the subject loan, the respondent prepared a letter of loan to be signed by Beverley and Christine Hughes and a second mortgage over their land at Henley Brook. I found that these allegations had been substantiated.
22 As to the debt collection agency matter, being CIV 2527 of 2004, I found that the respondent breached the Legal Practice Act by commencing two Local Court plaints and performing work in relation to the subject documents. I must also note that counsel for the Legal Practice Board, in the course of the present hearing, referred in particular
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- to the findings I made at par 100 of the 2006 judgment as to the first Grover matter as a means of alleging the alleged seriousness of the offence.
23 The finding I made at par 100 was in these terms:
"As to the first Grover matter, the respondent's letter dated 22 August 2002 establishes clearly that the respondent held himself out as a person with legal qualifications who was prepared to and did offer legal advice to Mr and Mrs Grover as to how they should deal with the problem concerning mortgage payments due to Oakleigh. The letterhead used by the respondent and the tenor of the letter itself shows that the respondent was holding himself out as a person capable of advising them and who was skilled in the practice of the law. It is clear also that the respondent was involved in the preparation of legal instruments and writings which were related to the advice he gave to Mr and Mrs Grover and to their company. It is clear also from the evidence given by Mr and Mrs Grover and the related documents including the respondent's invoice dated 22 August 2002 that the respondent was minded to charge for his services and did so in the manner of a legal practitioner. Accordingly, for these reasons, I am satisfied beyond reasonable doubt that the respondent was guilty of contempt in respect of each matter alleged in the motion."
24 This was said by counsel for the Legal Practice Board to show that the infringement was a consequence of a persistent course of conscious wrongdoing. It was said to demonstrate the seriousness of the offence. I accept that the finding in this matter and as to the other matters do indeed demonstrate the seriousness of the infringements.
25 It is against this background that I come to the relevant statutory provisions and legal principles bearing upon penalty, being matters touched on previously in the 2006 judgment and the supplementary judgment.
Legal principles
26 At the time the facts and matters giving rise to the motions before me occurred, s 76 of the Legal Practitioners Act provided that no person, other than a certificated practitioner, shall act as a solicitor or carry on legal proceedings.
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27 Section 77 provided that no person, other than a certificated practitioner, shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of the law or draw or prepare a deed instrument or writing relating to or in any dealing with or affecting real or personal estate or any proceedings at law or in equity.
28 By s 81 of the Act, any person who acted contrary to such provisions was guilty of a contempt of the Supreme Court and could be dealt with accordingly by the said Court on the motion of the Legal Practice Board, being a body constituted pursuant to provisions of the Act.
29 The Legal Practitioners Act was superseded by the Legal Practice Act 2003 (WA) which came into force on 1 January 2004. By s 123 of the Legal Practice Act, a person must not engage in legal practice unless the person is a certificated practitioner. The penalty for such an offence is described as $10,000.
30 By s 250 a person who contravenes the terms of the Legal Practice Act is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court on the motion of the Legal Practice Board. I note in passing that the contempt penalty was at large under each of the Legal Practitioners Act and the Legal Practice Act.
31 I concluded eventually that the liability of the respondent was to be determined in accordance with the Legal Practitioners Act, being the statute in force when the events occurred. However, it was necessary to refer to s 250 of the Legal Practice Act in dealing with the five subject motions for contempt and giving consideration to matters of penalty. Section 250 provides that a contravening person is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court or a Judge in Chambers on the motion of the Complaints Committee or the Board.
32 I noted also, having regard to Heedes v Legal Practice Board [2005] WASCA 166, that contempt was a unique offence in that not only is it the only criminal offence which still exists in this state of common law, but it cannot be prosecuted on indictment. It is dealt with by the civil processes of the court, albeit that the matters complained of must be proved beyond reasonable doubt.
33 I concluded that the procedure for acquainting the respondent with the case against him and for allowing him an opportunity to be heard is determined by O 55 of the Rules of the Supreme Court 1971 (WA) and the rules concerning originating motions. The rules in question allow for an
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- allegation of contempt to be advanced by way of an originating motion supported by affidavit evidence. That was the procedure adopted in respect of each of the five subject motions that were brought before the Court in the present case.
34 I must take account also of the decision of the Full Court in Kennedy v Lovell [2002] WASCA 226. The facts of that matter are set out briefly in the opening paragraphs of the judgment. It seems that in that case the respondent, Mr Lovell was found guilty of three charges of contempt in respect of his failure to attend the Royal Commission that was appointed to conduct an inquiry into whether there had been any corrupt or criminal conduct by any Western Australian police officers and other matters.
35 The first alleged contempt was that without reasonable excuse he failed to attend the commission as required by a summons duly served upon him. The second alleged contempt was that having attended and reported to the commission on 17 July 2002, he refused to be sworn or make an affirmation contrary to the relevant statutory provisions. The third alleged contempt was that after attending and reporting himself to the Royal Commission on 17 July 2002, he left the commission and failed to attend thereafter without having been released from attendance.
36 In the end the respondent was found guilty of these contempts and fined $10,000 for each offence. I note in passing that, as appears from the observations of Murray J at par 49 of the report, contempts of this kind were regarded as being of a most serious character. They clearly went to the heart of the Royal Commission's statutory power to conduct its business. They had a tendency to subvert its power to conduct its business efficiently and in accordance with due process. They could be regarded as quite flagrant contempts of court and they were obviously so regarded.
37 There are various passages in the judgment of Malcolm CJ which are of assistance to me in the present case. I will simply summarise the effect of those passages. His Honour observed at par 5 the question of punishment for contempt is entirely a matter within the discretion of the court. He noted that the offence before him was to be treated as if it were a contempt of the Supreme Court. He noted also that offences of this kind were offences at common law. It was not an offence for which a particular maximum penalty was provided by statute. There is nothing in the Criminal Code which affected the authority of the court to punish a person summarily for the offence of contempt of court.
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38 His Honour went on to say that the Sentencing Act 1995 (WA) provides that the Act does not apply in respect of the punishment of a person for contempt of court, but in his Honour's opinion it was appropriate in a case of the kind before him to have regard to the sentencing principles set out in s 6 of the Act.
39 His Honour went on to refer to certain observations made by Kirby J (as he then was) in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 313. Kirby J observed in that case that the contempt law has been fashioned by the court to protect the administration of justice. This is an activity which is self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours.
40 Malcolm CJ said further in the Kennedy v Lovell case (supra) at par 11 that in O 55 of the Rules of the Supreme Court a power is to be found whereby the Full Court has power to punish for contempt, and that may be exercised by an order of committal.
41 His Honour observed said that in the case of a contempt in the face of the Court, an order of committal may also be made. He observed that there was no distinction between the making of an order for committal to prison and sentencing an offender to imprisonment as the latter expression appears in s 35 of the Sentencing Act.
42 His Honour then went on to cite with approval various observations made by Dunford J in the case of Wood v Staunton [No 5] (1995) 86 A Crim R 183. It was said in that case that the decided cases show that relevant matters for consideration in assessing the proper punishment for this type of contempt include the seriousness of the contempt proved; whether the contemnor was aware of the consequences of what he did; the actual consequences of the contempt on the relevant trial or inquiry; whether the contempt was committed in the context of serious crime; the reason for the contempt; whether the contemnor has received any benefit by indicating an intention to give evidence; whether there has been any apology or public expression of contrition; the character and antecedents of the contemnor; general and personal deterrence; and denunciation of the contempt.
43 I pause to say that I intend to take account of that summary of important factors.
44 Order 55 of the Rules of the Supreme Court, as indicated by the decision I have just mentioned, deals with committal and attachment in
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- relation to the offence of contempt of court. For the purposes of this order, a contemnor is defined as being a person guilty or alleged to be guilty of contempt of court.
45 It should be noted, of course, that O 55 r 2 was amended in April 2005. The amendment is directed to provisions that suggested the authority of a single Judge to impose a prison penalty in certain instances of contempt was limited. I note, in passing, that most decisions that address the issue of punishment for contempt were handed down before the amended O 55 r 2 became operational on 2 May 2005.
46 I indicated in earlier discussion that the Sentencing Act, in particular s 3(3), expressly excludes the offence of contempt of court. However, as I have noted, it does appear from the reasoning in Kennedy v Lovell (supra) and in other cases that I will come to, that it is appropriate to give consideration to sentencing principles in the Sentencing Act.
47 This review of the statutory provisions and rules brings me now to certain decided cases which might arguably be said to have a bearing on the circumstances before me. In Legal Practice Board v Mullaly [2003] WASC 225, an allegation of contempt came before the Court in respect of a respondent who was once a legal practitioner. The respondent had provided some advice and assistance to a person in regard to the making of a claim for damages by that person arising out of the purchase of a motor vehicle.
48 Johnson J accepted that the key issue in determining penalty in the case before her was that of deterrence. Protection of the public is both a component of that issue and a separate and essential consideration. Accordingly, any fine imposed had to be sufficiently high to achieve those aims. In her view, a fine of $8000 was appropriate in the circumstances of that case where the conduct was deliberate and had resulted in financial gain but where there were also certain mitigating circumstances.
49 In Legal Practice Board v Ridah [2004] WASC 263, the respondent fitted out his office in a manner which suggested that he was a qualified legal practitioner and then proceeded to represent clients in various jurisdictions. In the course of dealing with the matter, McKechnie J made these observations at par 15:
"I turn to the question of sentence. It is necessary to clearly delineate the criminal conduct which is to be punished by me from the criminal conduct which has already been punished so as not to impose a double penalty on the respondent for the
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- same behaviour. The essence of the criminal conduct dealt with in the District Court was fraud. The essence of the criminal conduct to be dealt with on these contempt proceedings is the engagement of an unqualified person in legal practice. In summary, the behaviour continued over a nine-month period, involved more than eighty different people and involved deceiving, amongst many others, judicial officers. The clients who were deceived were in the main vulnerable persons whose legal interests were compromised by the unskilled and unlearned actions on the part of the respondent."
50 McKechnie J went on to observe:
"17. … This is as bad a case of an unqualified person engaging in legal practice as is possible to imagine. The Legal Practitioners Act 1893 leaves the Court at large to select the type and the length of punishment. I have come to the clear view that the only punishment sufficient to denunciate the conduct is a term of imprisonment.
18. The matters are interlinked with the convictions in the District Court. As I said earlier, the essence of those convictions was fraud and the essence of the conduct before this Court is engagement in legal practice. One went with the other so that in a very real sense the events all arose out of substantially the one transaction, albeit that it extended over a period of 9 months. For that reason I consider it appropriate to set a sentence which is concurrent with the sentences being served for fraud.
19. Having regard to the plea of guilty, and to the fact that in the antecedents of the offender as I now sentence him, he is serving a lengthy term of imprisonment, and to all the other matters of mitigation which Ms Loveday has raised, I fix a term of imprisonment of 20 months to be served concurrently with any sentence now being served.
Orders
- 1. That the respondent is guilty of contempt as particularised in par 1 of the motion.
2. The respondent is ordered to be sentenced to a term of imprisonment for 20 months, to be served
- concurrently with any sentence of imprisonment presently being served, without parole."
51 In summary then, my review of the relevant provisions and certain of the decided cases suggests that the position concerning the law of contempt at common law is preserved by the Supreme Court Rules. Section 250 of the Legal Practice Act leaves the penalty at large, although some of the decisions mentioned earlier indicate that a single Judge ought to be hesitant in imposing a prison sentence in certain cases of contempt. Most of those decisions were handed down before O 55 r 2 was amended in April 2005.
52 The amendment to rule 2 suggests that the powers of the Court and the authority of a single Judge to impose a prison sentence are currently unfettered. Consequently, I accept that the Court has wide powers to impose a penalty for contempt including, as expressly authorised by O 55 r 7 and O 55 r 8, a term of imprisonment or suspended term of imprisonment. In that regard I give weight to the ruling of the Full Court in Kennedy v Lovell (supra) and the later ruling of McKechnie J in Ridah's case (supra).
53 I must now return to the circumstances of the present case.
The present case
54 The five motions before me and the findings I have made in relation to them, as reflected in the 2006 judgment and the supplementary judgment, establish that the respondent is guilty of a contempt of this Court relating to events that occurred between 2001 and 2003.
55 Counsel for the applicant submits that the respondent has previously been a legal practitioner. He cannot claim that his acts detailed in the motions arose from him acting in ignorance whether absolute or partial. It is said the work detailed in each of the motions was for reward and that must be seen to have been the respondent's motivation for performing such work.
56 It was said further the respondent has not been involved in one isolated act of engaging in legal work. His continued and repeated involvement in the practice of the law after being struck off the role should be viewed more seriously than the misguided activities of those untrained and unqualified individuals who may engage in legal work believing that they are simply assisting another member of the public by performing legal work for them.
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57 Counsel submitted, having regard to the provisions in cases I referred to earlier, that the nature of the penalties open to the Court is at large. He submitted also that there is a need for a specific deterrent with respect to the respondent. He must be deterred from further engaging in legal work. There is also a need for a general deterrent for other like-minded practitioners who have been struck off and may in the future seek to engage in legal work.
58 It was said that the facts alleged against the respondent in the five motions all occurred before the delivery of the judgment and reasons for decision in Legal Practice Board v Mullaly (supra). Counsel noted, as I have done, that Mullaly was fined $8000 for a one-off event with a number of mitigating factors. It was said by counsel for the applicant that this did not cover the situation in the present case.
59 It was against this background that counsel for the Legal Practice Board proposed, in a minute of proposed orders dated 18 April 2006, that orders be made as follows:
"1. In respect of CIV 2523 of 2004, the respondent be sentenced to a term of imprisonment of 9 months, suspended for 12 months, such sentence to be served concurrently with any term of suspended imprisonment imposed in respect of CIV 2527 of 2004.
2. In respect of CIV 2527 of 2004, the respondent be sentenced to a term of imprisonment of 9 months, suspended for 12 months, such sentence to be served concurrently with any term of suspended imprisonment imposed in respect of CIV 2523 of 2004.
3. In respect of CIV 2524 of 2004, the respondent be fined the sum of $10,000 with two months to pay.
4. In respect of CIV 2525 of 2004, the respondent be fined the sum of $10,000 with two months to pay.
5. In respect of CIV 2526 of 2004, the respondent be fined the sum of $10,000 with two months to pay.
6. The respondent pay the applicant's costs of and incidental to the respondent's chamber summons to set aside orders dated 19 October 2006 to be taxed.
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- 7. The respondent pay the applicant's costs of the applicant's Originating Motions (CIV 2523 to 2527 of 2004), including any reserved costs, to be taxed."
Respondent's submissions
60 Counsel for the respondent strongly opposed the making of any such orders. He has handed to me letters bearing upon the respondent's situation including the letter of Rildah Frichot dated 17 April 2007. I will take account of what has been said on the respondent's behalf in these letters.
61 The respondent is 56 years of age. His present residential address is given in the written submissions dated 17 April 2006 put up by counsel for the respondent. It is an address in West Leederville. His occupation is presently given as process server and debt collector.
62 I am informed that Mr Frichot has been married for two years. He has four adult children from a previous marriage and three grandchildren. His wife has two adult children also from a previous marriage. The respondent and his siblings currently care for his 96-year-old father who still lives at home. The respondent frequently visits his father and helps him with the cooking, cleaning and gardening. The respondent takes his father to church and to visit his mother, who resides in a nursing home.
63 It is said that the respondent currently works as a process server and debt collector for a small licensed debt collection agency. The principal of the firm is his wife. It is said that his income varies according to the amount of work available. Currently, he receives approximately $200 per week and has approximately $5000 in savings. His wife is employed by a lighting company on a part-time basis. She earns approximately $35,000 per annum. It is said that the matrimonial home is owned by the respondent's wife but subject to a mortgage of $1000 per month which payments are met by the respondent's wife.
64 I am informed that the respondent owns no assets of any value. He is said to be in good health but suffers from cataracts and a back condition. He is currently scheduled to undergo eye surgery on his left eye on 8 May 2007 with surgery on his right eye to occur soon after. His back condition prevents him from completing manual or quasi-physical work.
65 It is submitted that the respondent did not overtly flaunt the law by pretending to be a certificated practitioner but, rather, merely crossed in each case a somewhat blurred line between business advice and legal
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- advice. It is said that the respondent has made extensive efforts to inform anyone who comes into contact with him through the debt collection business or who seeks advice or information that could be construed in any way as amounting to legal advice, that he is not a registered practitioner.
66 It is submitted that at no stage did the respondent intend to hold out or advertise himself as a solicitor in general practice. Counsel submits that the offences subject to the current penalty hearing arose some time ago in 2002 and 2003. It is submitted that since the charges were made, the respondent has made concerted efforts not to be seen in any way as connected with any form of legal business. He no longer uses the letterhead as referred to in the Grover complaints.
67 It is conceded that whilst the respondent did receive nominal payment from the complainants, he did not charge them rates at anything comparable to those often charged by solicitors. It is submitted that at the time, the respondent did not feel that he was giving direct legal advice to the complainants as he was aware that each complainant had their own legal representative with whom they had regular contact. It was submitted that, at all times, he has attempted to abide by the restrictions placed upon him by the Legal Practitioners Act.
68 Reference is made to his attempt to seek work as a law clerk. It is submitted that since the respondent's release from custody, he has had great difficulty in obtaining employment with this being further exacerbated due to his conviction for dishonesty offences. He has found both due to his age and limited training and employment fields other than the law, that it is particularly difficult to find work where administrative or quasi-legal duties do not have the potential to overstep the boundary of legal work.
69 As a result of the present charges, the respondent is currently seeking employment outside of the debt collection field It was put to me that this matter has already attracted a good deal of adverse publicity which has been distressing for the respondent and represents a setback to his future prospects. It was said that since his imprisonment, he has lost virtually everything he ever accumulated over 30 years in the law. It was said that he has no longer a gambling addiction of the kind that resulted in his imprisonment.
70 The respondent's submission is that a suspended term of imprisonment is not appropriate. It is submitted also that any fine
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- imposed should be within the respondent's means having regard to well recognised principles of law in that respect. It is submitted that any period of time to pay the fine should be realistic and not effectively result in a default period of imprisonment. It is said that the cost of the proceedings to be borne by the respondent will, of themselves, constitute a significant penalty. It is put to me that Mullaly's case (supra) was a more extreme case and resulted in a lesser fine than is sought in the present case.
71 It is respectfully submitted that the matter could adequately be dealt with by way of a global fine with time to pay and an order to pay the relevant costs of the proceedings.
Conclusion
72 As I draw together the various submissions and considerations before me, I have to say that I see force in what has been put to me on behalf of the respondent in the submissions I have just described. There is, undoubtedly, a need for general and personal deterrence in a case of this kind.
73 As I have noted, there was a persistent course of misconduct which, in various ways, gave rise to infringements. Nonetheless, this is not a case at the same level of seriousness as Ridah's case (supra). That case involved palpable acts of impersonation and deceit in which a legal office was established clearly with the intention of misleading the public into believing that the office was occupied by a certificated practitioner.
74 There is nothing in the respondent's conduct in the present case which can be characterised as being of the same order of misconduct as occurred in Ridah's case (supra). To my mind, as I look over the entire history of this matter, it seems that the infringements arose essentially as a matter of misjudgement on the part of the respondent as to what was permissible in a context where the boundary line between what is permissible and what is impermissible is not always clear. The respondent made an attempt to work within employment situations which precluded him from holding himself out directly as a certificated legal practitioner.
75 When it comes to considering penalty, I am prepared to give weight to the notion that the respondent did not openly disregard the law by pretending to be a certificated practitioner. He transgressed as a consequence of crossing the line between business and legal advice
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- without paying sufficient heed to the restrictions contained in the Legal Practitioners Act.
76 One must also take account of the fact that after a period of imprisonment as a result of his earlier transgression, it was obviously going to be difficult for a man of middle years to find work suitable to his skills. Nonetheless, he was obliged to make a living.
77 These general observations must be viewed in the light of what was said by the Full Court in Kennedy v Lovell (supra) at par 14. I remind myself that reference was made there to various factors that must be considered.
78 As I translate and apply the general observations I have just made to those factors, I am conscious, having regard to what I said a moment ago, that although the infringements in the present case were serious, they were not of the same order as I have described in Ridah's case (supra). It appears from the list of factors mentioned that general and personal deterrence are undoubtedly important considerations, but I am of the view that those factors can be covered by orders of a kind other than imprisonment.
79 Having regard to what has been put to me by counsel for the respondent, I am prepared to accept that the respondent recognises that he was in default and has taken and will continue to take steps to ensure that he will not re-offend. He will endeavour to avoid working in situations where the line between business advice and legal advice might be crossed. I give weight to that. I also give weight to his personal circumstances as I described them a moment ago, including his somewhat limited financial circumstances as matters presently stand.
80 It follows from all of this that I am not satisfied that orders of the kind contended for by the Legal Practice Board should be made. I am not persuaded that a term of imprisonment should be imposed, albeit with provision for suspension, in the manner allowed for by the minute of proposed orders that I described a moment ago. I consider that the decided cases indicate that the sentencing principles in the Sentencing Act should be kept in mind, although any direct application of the provisions of that Act are excluded in relation to the offence of contempt.
81 Conventional sentencing principles suggest that separate consideration must be given to each offence or matter of infringement before a court. Conventional principles suggest also that the Court should have regard to the totality principle, and thus keep under notice the
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- effective aggregate of the various individual sentences imposed in respect of a series of offences.
82 It therefore seems to me, drawing all this together, that the appropriate orders are for significant fines to be imposed upon the respondent in respect of each of the discrete offences the subject of the motions for contempt. In imposing those fines I have in mind how they fit together as an aggregate imposition. I do consider that some allowance should be made, having regard to the respondent's circumstances, for time to pay and with provision for liberty to apply of the kind foreshadowed to me by counsel for the respondent.
83 The orders to be made are as follows:
1. In respect of CIV 2523 of 2004, the respondent be fined the sum of $5000 with 3 months to pay.
2. In respect of CIV 2527 of 2004, the respondent be fined the sum of $5000 with 3 months to pay.
3. In respect of CIV 2524 of 2004, the respondent be fined the sum of $2000 with 3 months to pay.
4. In respect of CIV 2525 of 2004, the respondent be fined the sum of $2000 with 3 months to pay.
5. In respect of CIV 2526 of 2004, the respondent be fined the sum of $2000 with 3 months to pay.
6. The respondent to pay the applicant's costs of and incidental to the respondent's chamber summons to set aside orders dated 19 October 2006 to be taxed.
7. The respondent pay the applicant's costs of the applicant's originating motions (CIV 2523 – 2527 of 2004) including any reserved costs to be taxed.
8. There will be liberty to apply to a Judge or to a Registrar of the Supreme Court for an extension of time for good cause in respect of the time for payment of the fines.
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