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Supreme Court 3 November 2005

Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery

[2005] NSWSC 1237

Public order & justice offences
SENTENCE ONLY CONTEMPT OF COURT

Citation: Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery [2005] NSWSC 1237
Court: Supreme Court of New South Wales
Date: 3 November 2005
Judge(s): Latham J

Background

The defendant was admitted as a solicitor in 1986 and as a barrister in 1993, practising lawfully until 30 June 2002. He failed to renew his practising certificate from 1 July 2002 onwards, primarily due to severe depression and financial hardship. Despite this, he continued to appear in courts as a barrister.

By October 2002, the defendant had regained the financial means to renew his certificate, but recognised he would need to declare in a statutory declaration that he had not practised without one. Rather than make that declaration falsely, he chose to continue practising unlawfully. Between August 2002 and December 2003, he made 29 appearances in the Compensation Court, District Court, Supreme Court, and Local Court without holding a valid practising certificate.

The conduct came to light in December 2003 when the NSW Bar Association wrote to him seeking an explanation. He admitted his conduct promptly and provided undertakings to cease appearing. The Prothonotary of the Supreme Court subsequently brought contempt proceedings, and the defendant was convicted on 29 counts on 16 June 2005. This judgment concerned sentencing only.

  • What sentence was appropriate for 29 counts of contempt of court arising from appearances as a barrister without a current practising certificate?
  • Whether the conduct should be characterised as contumacious contempt, placing it at the most serious end of the spectrum.
  • How mitigating factors, including depression, remorse, early admissions, and prior good character, should affect the sentence.
  • Whether a custodial sentence, and if so whether a suspended one, was appropriate in the circumstances.

Decision

Latham J found these were grave instances of contempt. Practising without a certificate contravenes s 48B(1) of the Legal Profession Act 1987, which deems such conduct contempt of the court in which the contravention occurs. The absence of professional indemnity insurance exposed clients to significant risk, and the conduct constituted an abuse of the trust courts place in practitioners appearing before them.

The court rejected a full characterisation of the conduct as contumacious contempt, noting that term is reserved for conduct aimed at degrading the administration of justice. However, the intentional and prolonged nature of the offending placed it at the upper end of the range of objective gravity. The 14-month continuation after the defendant chose not to renew his certificate rather than disclose his unlawful appearances was a significant aggravating feature.

In mitigation, the court accepted the genuine nature of the defendant's depression as a contributing factor, though not a justification. His early admissions, cooperation with the Bar Association, prior good character, real contrition, and complete rehabilitation all weighed in his favour. Latham J applied a 25 per cent discount to reflect the utilitarian value of the admissions of guilt.

While satisfied that nothing less than a custodial sentence was warranted, Latham J suspended all sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, having regard to the defendant's contrition, prior good character, and prospects of rehabilitation. The defendant had already been removed from the Roll of Legal Practitioners by the Court of Appeal in December 2004.

Orders Made

  • Charges 1 to 4: nine months' imprisonment on each charge, comprising a non-parole period of six months and a balance of three months.
  • Charges 5 to 12: ten months' imprisonment on each charge, with a non-parole period of five months.
  • Charges 13 to 29: twelve months' imprisonment on each charge, with a non-parole period of six months.
  • All sentences suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to the defendant entering into bonds under that section.
  • The defendant is to pay the plaintiff's costs.

Key Takeaways

  • Under s 48B of the Legal Profession Act 1987, appearing as a barrister without a current practising certificate constitutes contempt of the court in which the appearance takes place, and is treated as a criminal matter for sentencing purposes.
  • Contumacious contempt, the most serious category, is confined to conduct designed to degrade the administration of justice; intentional but non-defiant misconduct can still sit at the upper end of objective gravity without attracting that label.
  • A 25 per cent discount on sentence was applied to reflect the utilitarian value of early admissions and cooperation, consistent with the principles in Maniam (No. 2).
  • Suspended custodial sentences remained available in serious contempt cases where genuine rehabilitation and contrition were established to the court's satisfaction.
  • The absence of financial harm to clients did not significantly reduce the objective seriousness of practising without indemnity insurance, given the risk of harm that existed throughout the offending period.

Legislation and Cases Referenced

Legislation:
- Legal Profession Act 1987 (NSW), s 48B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 95

Cases:
- Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
- Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309
- Wood v Galea (No. 1) (1995) 79 A Crim R 567
- Commissioner for Fair Trading v Oliver [2004] NSWSC 722
- Registrar in Equity v Froome [2001] NSWSC 1029
- Pelechowski v Registrar of the Court of Appeal (NSW) (1999) 198 CLR 435