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- Unreported Judgment
Arulogun v Legal Services Commissioner QDC 207
DISTRICT COURT OF QUEENSLAND
Arulogun v Legal Services Commissioner  QDC 207
ARULOGUN, Stephen Oluboyede
LEGAL SERVICES COMMISSIONER
Appeal pursuant to section 222 of the Justices Act 1886 (Qld)
Magistrates Court at Brisbane
17 November 2023
13 November 2023
CRIMINAL LAW – APPEAL – SENTENCE – where the appellant breached provisions of the Legal Profession Act 2007 by representing that he was a lawyer on Airtasker – where the offending occurred over 14 months and involved 33 complainants – where the appellant had previous convictions as a pharmacist – where appellant pleaded guilty – whether Magistrate took into account the pleas of guilty – whether delay relevant as a mitigating factor in circumstances where the appellant had not committed further offences for almost two years – whether a jail sentence was the only available option – whether sentence manifestly excessive
Justices Act 1886 (Qld) ss 222, 223 and 224
Legal Profession Act 2007 (Qld) ss 3, 24, 25, 115
Penalties and Sentences Act 1992 (Qld) ss 9, 13
Attorney-General v Legal Services Commissioner  QCA 66, considered
Legal Services Commissioner v Braid, Magistrates Court 7 February 2017, considered
Legal Services Commissioner v Wrightway Legal  QCAT 174, considered
New South Wales Bar Association v Cummins  NSWCA 284; 52 NSWLR 279, considered
R v Bond, District Court 25 November 2016, considered
R v CCR  QCA 119, cited
R v DAC  QCA 53, cited
R v Horne  QCA 218, considered
R v Illin  QCA 285; 214 A Crim R 176, cited
R v Law; ex-parte Attorney-General  QCA 444;  2 Qd R 63, considered
R v Oliver  QCA 348;  3 Qd R 221, considered
R v Phillips  QCA 284; 188 A Crim R 133, cited
R v Waite  QCA 270, considered
Pearson v Legal Services Commissioner  QDC 266, considered
Reichman v Legal Services Commissioner  QDC 158, considered
Teelow v Commissioner of Police  2 Qd R 489;  QCA 84, applied
The Queen v Crowley, Magistrates Court 21 April 2023, considered
Tones v R  VSCA 118, cited
Mr G Elmore for the appellant
Ms R Taylor for the respondent
ACLG Lawyers for the appellant
Legal Services Commission for the respondent
- The appellant, on 11 October 2023, pleaded guilty to:
- 32 offences of engaging in legal practice when not entitled to contrary to s 24(1) of the Legal Profession Act 2007;
- 32 offences of representing or advertising that he was entitled to engage in law practice when not entitled to contrary to s 25(1) of the Legal Profession Act 2007;
- one offence as a director of Talus Services Pty Ltd in that he implied that Talus Services Pty Ltd trading PEF Capital was entitled to engage in legal practice and in doing so that Talus Services Pty Ltd was an incorporated legal practice contrary to s 115(2) of the Legal Profession Act 2007.
- The effective penalty was 12 months imprisonment with parole release after serving four months.
- He has appealed the sentence pursuant to section 222 of the Justices Act 1886 (Qld) (“JA”). I order for the appellant to succeed it is necessary for him to show that the decision is the result of legal, factual or discretionary error (see Teelow v Commissioner of Police  2 Qd R 489;  QCA 84 at ).
- Section 223 of the JA provides that the appeal is to be by way of rehearing and section 224 of the JA sets out the various powers of this court.
- An initial matter to be dealt with is whether an error occurred in the Magistrate imposing jail terms on charges 4, 12, 16, 24 and 32 because these charges had been discontinued. The Magistrate referred to those charge numbers when imposing 12 months imprisonment. However those charges are not referred to in the Verdict and Judgment Record. The Magistrate referred to a schedule which had different numbering to the numbering in the complaint. In the end, I am not satisfied any error has occurred in this regard.
- An agreed statement of facts was tendered at the sentencing hearing. This revealed that the maximum penalties for each charge was 300 penalty units ($46,440 or two years imprisonment).
- The appellant held a Bachelor of Laws degree from the Queensland University of Technology, conferred on 9 December 2014. He completed College of Law in 2015. On 29 June 2020, the appellant confirmed his intention to make application for admission to the legal profession with the Legal Practitioners Board of Admissions. On 27 July 2020, his application for admission was adjourned to a date to be fixed. He has never been admitted to the legal profession in any jurisdiction within Australia nor has he ever held a practising certificate.
- On 9 March 2020, he became a member of the website Airtasker. His username was ‘Stephen A’. His Airtasker profile stated that:
- He was an industrial relations, regulations and commercial consultant;
- He held professional indemnity insurance to provide litigation process, commercial, IR and HR and government regulation consulting; and
- He could provide workplace relations and employment advice from $50.
- His profile had 52 reviews which were available for review by other members of the public. He had a 100 percent completion rate and an overall five-star rating.
- The reviews clearly indicated he had provided legal advice to 33 people.
Charges 1 and 2
related to him providing a legal opinion for a QBCC payment dispute between 22 May 2021 and 14 June 2021.
related to legal advice concerning the setup of strata management of a company between 18 April 2021 and 4 June 2021.
Charges 5 and 6
related to legal advice concerning a business partnership dispute between 19 March 2021 and 30 April 2021.
Charges 7 and 8
related to legal advice concerning a franchise between 18 February 2021 and 25 March 2021.
Charges 9 and 10
related to advice concerning a professional service agreement between 18 January 2021 and 16 February 2021.
Charges 13 and 14
related to a fraud advice between 18 September 2020 and 19 October 2020.
Charges 17 and 18
related to legal advice concerning a company structure between 18 September 2020 and 16 October 2020.
Charges 19 and 20
related to legal writing for a website between 18 August 2020 and 8 October 2020.
Charges 21 and 22
related to preparation of an affidavit between 18 August 2020 and 3 September 2020.
Charges 25 and 26
related to advice concerning a business contract between 9 March 2020 and 29 June 2020.
Charges 27 and 28
related to writing a legal letter on a date between 9 March 2020 and 18 June 2020.
Charges 29 and 30
related to the legal review of a shareholder contract between 9 March 2020 and 24 June 2020.
Charges 33 and 34
related to legal advice concerning an agency between 9 March 2020 and 19 June 2020.
Charges 35 and 36
related to legal advice concerning small local court claims and NCAT hearings between 9 March 2020 and 15 June 2020.
Charges 37 and 38
related to advice concerning a retaining wall between 9 March 2020 and 23 June 2020.
Charges 39 and 40
related to advice concerning shareholder agreements between 9 March 2020 and 4 June 2020.
Charges 41 and 42
related to advice concerning a Family Court matter between 9 March 2020 and 5 June 2020.
Charges 43 and 44
related to advice concerning a franchise agreement between 9 March 2020 and 31 May 2020.
Charges 45 and 46
related to advice concerning subleasing between 9 March 2020 and 21 May 2020.
Charges 47 and 48
related to business advice between 9 March 2020 and 24 May 2020.
Charges 49 and 50
related to advice concerning a contract of sale between 9 March 2020 and 20 May 2020.
Charges 51 and 52
related to industrial relations advice between 9 March 2020 and 20 May 2020.
Charges 53 and 54
related to an advice concerning a tenancy agreement between 9 March 2020 and 15 May 2020.
Charges 55 and 56
related to small business advice between 9 March 2020 and 16 May 2020.
Charges 57 and 58
related to unfair dismissal advice between 9 March 2020 and 9 May 2020.
Charges 59 and 60
related to a letter of demand between 9 March 2020 and 16 May 2020.
Charges 61 and 62
related to advice concerning a small business startup between 9 March 2020 and 15 May 2020.
Charges 63 and 64
related to family law advice between 9 March 2020 and 12 May 2020.
Charges 65 and 66
related to contract advice between 9 March 2020 and 10 May 2020.
Charges 67 and 68
related to investment contract advice between 9 March 2020 and 30 April 2020.
Charges 69 and 70
related to the review of a costs agreement between 9 March 2020 and 19 April 2020.
Charges 71 and 72
related to affidavit advice between 9 March 2020 and 7 April 2020.
related to Talus Services.
related to drafting an employment contract on or about 21 May 2020.
- The appellant earned about $8,126 in fees as a result of his unlawful conduct.
- On 9 February 2021, the appellant was referred to the Legal Services Commission by the Registrar of the Supreme and District Courts of Queensland. The Commission identified numerous instances of the appellant advertising an entitlement to engage in legal practice using Airtasker.
- On 24 November 2021, the Commission applied for an injunction restraining the appellant and his company from engaging in legal practice. On 15 December 2021, the injunction application was dismissed upon the appellant entering an undertaking to refrain from engaging in legal practice, representing or advertising he was entitled to engage in legal practice and that Talus Services would refrain from engaging in legal practice.
- On 14 January 2022, the appellant’s legal representative wrote to the Commission informing the Commission the appellant did not intend to provide a submission regarding the allegations. A record of interview was offered in November 2022 but there was no response.
- At the time of the offending the appellant was 36 to 38 years of age. He had a criminal history.
- On 15 August 2005 he had been convicted of seven charges of fraud for which no conviction was recorded and probation and community service was ordered.
- On 23 January 2012, he had been convicted of three drug offences and two offences contrary to the Health (Drugs and Poisons) Regulation 1996. He had been sentenced to 18 months imprisonment with release after serving six months.
- The facts of these offences were that as a pharmacist he was misusing, supplying and diverting pseudoephedrine, steroids, benzodiazepines and morphine to others.
- As a result of his conduct concerning the drug charges, the Pharmacy Board of Australia placed restrictions on his registration but he deliberately failed to comply with some of these and on 13 December 2013, QCAT determined he had engaged in professional misconduct and disqualified him from obtaining registration as a pharmacist for two years.
Submissions by the prosecution
- In written submissions, the prosecution pointed out the principles contained in s 3 of the Legal Profession Act. It was submitted that public confidence in the legal system was paramount and the potential for substantial loss being occasioned by fraudulent advice is significant. In this case the appellant provided advice in relation to a wide variety of matters varying in complexity and clients relied on this advice believing he was a lawyer and appropriately qualified. Rogue practitioners operate without the safety net of insurance. It was submitted that honesty and integrity are very important.
- It was submitted that protection of the public, personal deterrence and general deterrence were important. It was submitted that the offences were serious. The financial gain was not known exactly. The appellant had a recorded criminal history with actual imprisonment. He had failed to rehabilitate himself since 2012. The plea of guilty should be regarded as timely. There was a prolonged failure to desist from his offending.
- The prosecution submitted that 15 to 18 months imprisonment with a period of actual custody to be served was appropriate. A number of comparable decisions were relied on. Costs were also sought.
- In oral submissions the prosecutor repeated the salient facts of the case to the Magistrate.
Submissions by the defence
- The defence tendered an outline of submissions. The sentencing submission was for a global fine of $10,000 with 150 hours community service. A report from Ms Sarah Jones, Clinical Psychologist, dated 25 September 2023 was tendered. This report noted the appellant was born in Brisbane. He had a functional early life although there was some bullying in primary school. He was diagnosed with Attention Deficit Disorder and was prescribed Ritalin in childhood. Following high school, he was refused entry into the Australian Defence Force because of vision issues. He commenced studying a Bachelor of Science degree which changed to a Bachelor of Pharmacy. He graduated at the age of 23 in 2006 and purchased a chemist franchise in Ipswich with a classmate. A second shop was purchased and the financial stressors increased. In 2011 he faced his first criminal charges relating to the dispensing of medications outside of the legal limits. The criminal matters resolved in 2012 and he returned to fulltime studies in July 2012 as he was unable to continue his career as a pharmacist.
- He is separated from his wife. He engaged in psychotherapy being diagnosed with narcissistic personality disorder, anxiety and depression. He graduated with a Bachelor of Laws degree in 2014 and worked in a program at the Department of the Premier and Industrial Relations. He obtained work as an Uber driver. He commenced his present relationship in 2019. He was diagnosed with arthritis. He faced employment difficulties. In the lead-up to the period of offending, he finished his degree in law, was unable to work as a pharmacist and was waiting for his admission. He was unaware that his actions were illegal. It was after his advice was used in a 2020 trial the presiding Judge made comment to the lawyer involved that the advice by the appellant was not admissible.
- He had a close relationship with his mother and a difficult relationship with his father. His father died recently. He has a close relationship with his two children (aged 15 and 12).
- After testing was conducted, the appellant presented at a moderate range of the risk of experiencing clinical problems. He had marked difficulties in managing his impulsivity, sensation seeking, alcohol use and would likely have a disregard for conventional authority. There was moderate potential for difficulties within the health problems domain. He had mild difficulties resulting from alcohol use.
- It was noted that with narcissistic personality disorder there is a tendency for individuals to overvalue themselves and have an inflated sense of self-importance. He was suffering specific stressors at the time of the offending and the offending was an avenue to secure an alternative form of income minimising financial distress. He was most likely suffering an adjustment disorder due to stress, an ongoing narcissistic personality disorder and attention deficit/hyperactivity disorder. It was said that his overall risk of reoffending fell in the low risk/needs range. It was recommended that he continue to engage in dialectical behavioural therapy for his conditions. He would benefit from an anti-depressant medication. He would also benefit from therapy as to his ADHD.
- A letter from Dr Phillip Vecchio, a physician and Rheumatologist, noted that he had been treating the appellant’s spondyloarthritis since March 2020. The condition was described.
- Two character references (from Keith Marsh and Daniel Gale) were tendered which spoke well of the appellant. It was submitted that the quantum involved was not great and there would be more serious examples of the offending. The fact that he had NPD was relied on. The plea of guilty was significant and resolved the possibility of a very lengthy trial with 33 potential witnesses. There was no suggestion he had breached the injunction ordered in the Supreme Court. There was delay which was not due to the fault of the appellant. The comparable decisions were discussed.
- Alternatively, the appellant argued that a suspended sentence would be imposed bearing in mind the provisions of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) (“PSA”).
- The Magistrate in his reasons referred to the maximum penalties and the charges. He referred to the agreed statement of facts. He noted the plea of guilty. He noted the offending occurred over some 14 months and involved 33 members of the public. He noted it was prolonged, sophisticated and systemic. He found the offending was deliberate misconduct on the part of the appellant. It was serious and s 3 of the Legal Profession Act was relevant. He did not cooperate with the investigation but entered pleas of guilty and accepted they were timely and this demonstrated significant cooperation. He referred to the appellant’s personal circumstances and the reports of Ms Jones and Mr Vecchio. He noted his criminal history and noted the purposes of sentencing and the relevant comparable decisions. In the end, the Magistrate considered that general deterrence and public denunciation were important features in the sentence and ultimately imposed 12 months imprisonment with a parole release date after serving four months in actual custody.
- The appellant submits that the sentence imposed by the Magistrate was unjust and unreasonable. It is submitted that the Magistrate erred in rejecting delay as a mitigating feature. It is submitted the Magistrate erred in failing to take into account the plea of guilty. He misapplied s 9(2) of the Penalties and Sentences Act.
- It is submitted that by reference to the comparable decisions, a jail term was outside of the appropriate sentencing range.
- The respondent submits that there were aggravating features of the appellant’s offending which distinguished it from the comparable cases. The appellant had been referred to the respondent by a District Court Judge yet continued to offend after this. He had a relevant criminal history and the scheme was sophisticated, systemic and deliberate. All of the findings that the Magistrate made were open. It is submitted that there was no significant delay between the date of the undertaking in the Supreme Court and the issue of the complainant’s summons (four months). There was no error in the Magistrate’s approach. The Magistrate took into account the plea of guilty. The Magistrate did not misapply s 9(2) of the Penalties and Sentences Act.
- A prison term was the only appropriate sentence open.
- In my respectful opinion, the Magistrate specifically took into account s 13 of the Penalties and Sentences Act and referred to the plea of guilty (reasons page 1-3.20). It is clear that the Magistrate reduced the penalty otherwise available by at the least setting a parole release date at the third of the head sentence. This is a common practice where pleas of guilty occur (R v CCR  QCA 119 at 18 and R v DAC  QCA 53 at 31-32). There was no error established here.
- I next turn to the issue on whether there was a misapplication of section 9(2)(a) of the PSA. The Magistrate at page 1-5.25 specifically reminded himself that a sentence of imprisonment was one of last resort but found there was no reasonable alternative other than a term of imprisonment.
- In R v Oliver  QCA 348;  3 Qd R 221 at - the Court of Appeal noted that one must have regard to section 9(1) and section 9(2) together.
- In my view, the Magistrate did not err here. He had regard to section 9(2)(a) and in effect found that a term of imprisonment was the only alternative open. He had earlier had regard to the sentencing principles in section 9(1) (see reasons page 1-5.5). There is nothing wrong with this approach. There are some matters so serious that despite section 9(2)(a) the only appropriate sentence is one of imprisonment. There was no error in using the term “reasonable alternative”.
- The next issue is the one of delay. The appellant gave undertakings to the Supreme Court in December 2021 and it was not until October 2023 that he was sentenced. He had not breached those undertakings nor his bail undertaking whilst subject to the charges.
- The Magistrate in argument told the appellant’s counsel that the delay was not a significant feature to the defendant’s credit (see page 1-63.22). The delay was not referred to in the sentencing remarks.
- In R v Law; ex-parte Attorney-General  QCA 444;  2 Qd R 63, the Court of Appeal noted that the lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor unless the delay has resulted in some unfairness to the offender. This can be shown in cases where the offender has been left in a state of uncertainty caused by the failure to prosecute the case more quickly or where the time between the commission of the offence and sentence was sufficient to show the court that rehabilitation had made good progress. In R v Waite  QCA 270 at  it was noted that an inference may be drawn as to effect of a threatened prosecution.
- However it has also been held relevant that a person has remained out of trouble whilst on bail. Indeed, in R v Horne  QCA 218 the Court of Appeal noted that it was an error for the Trial Judge not to have referred to the applicant’s unblemished record whilst on bail.
- The above principles have been applied in a number of cases (see in particular R v Phillips  QCA 284; 188 A Crim R 133 at  to ; R v Illin  QCA 285; 214 A Crim R 176 and Tones v R  VSCA 118 at  to ).
- The fact is it may be readily inferred the appellant would have been aware of the prospect of criminal charges from December 2021 and he certainly was after the summons was issued in April 2022. He complied with his bail and did not reoffend. This no doubt would have caused a state of anxiety and uncertainty knowing there was a prospect of jail.
- It is true that one might be sceptical about some aspects of the psychological report but there was no challenge to the fact he was working as an Industrial Relations Advocate and wished to spend time with his sons (aged 15 and 12) and his family. The references showed he had learnt his lesson and had lived a law-abiding life since.
- In my respectful opinion, the Magistrate did err concerning the question of delay. It was a mitigating factor which ought to have been taken into account at the sentence to at least some degree.
- Having found error, I now turn to what sentence should be imposed in this case.
- I first turn to the comparable decisions.
- A number of comparable decisions were relied on but in my view, each is different to the present case.
- In Legal Services Commissioner v Braid, Magistrates Court 7 February 2017, there was only one charge of taking money from a complainant as a result of a false claim to be a solicitor. He was sentenced on other charges as well. Three months imprisonment was imposed. That case is less serious than the present one.
- In The Queen v Crowley, Magistrates Court 21 April 2023, the offender pleaded guilty to six charges which effectively were three pairs of offences involving him attending court to appear for people whom he knew. He was sentenced to three months imprisonment suspended for a period of nine months. Again, that case is less serious than the instant one.
- In R v Bond, District Court 25 November 2016, Mr Bond pleaded guilty to serious fraud offences involving a little over $226,000. He was sentenced to four and a half years imprisonment suspended after serving 17 months imprisonment. That case was more serious than the present one.
- In Reichman v Legal Services Commissioner  QDC 158, Mr Reichman had been convicted of one charge after trial and was sentenced to a fine of $1,500 with a conviction recorded. On 12 separate occasions he attended a police station and described himself as a legal representative. I consider that case less serious than the present one. He was a lot younger also and this was an important mitigating factor (see . He did have a previous conviction but totality was involved. It was also a prosecution appeal.
- In Pearson v Legal Services Commissioner  QDC 266, the appellant was charged with one count of breaching s 24 of the Legal Profession Act. He was fined $1,500. The case involved one complainant only. I consider that case less serious than the present one.
- There were a number of aggravating features here as following:
- the number of charges;
- the criminal history of the appellant;
- the protracted course of conduct over 14 months;
- his background as a suspended pharmacist;
- the continuation of offending after the referral by Judge Barlow to the LSC;
- the maximum penalties;
- the fact this offending was deliberate, sophisticated and systemic;
- the fact he had applied for admission part way through the offending period and he had continued to offend;
- The appellant was a mature man.
- Section 3 of the Legal Profession Act was relevant. The Act’s purposes include:
- that legal practice is to be engaged in only by persons who are properly qualified and hold a current practising certificate;
- only persons who are eligible and fit and proper persons for admission to the legal profession are admitted.
- Public confidence in the legal system is paramount. Where individuals engage in legal practice without the oversight of the Queensland Law Society, real concerns are held about the integrity and quality of the advice and representation provided. There is a potential for substantial loss being occasioned by flawed advice.
- In this case, the appellant was providing advice in relation to a wide variety of matters varying in complexity including corporate and commercial law, contract law, family law and employment law. The various clients relied upon his advice believing he was a lawyer and that he was appropriately qualified and insured to make important decisions. Rogue practitioners operating without the safety net of insurance expose themselves and their clients to unnecessary risk which is the precise risk the legislature is seeking to deter.
- The privileged position that legal practitioners occupy in the community was discussed in New South Wales Bar Association v Cummins  NSWCA 284; 52 NSWLR 279 at 19-20. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Community protection is relevant in this area (see Legal Services Commissioner v Wrightway Legal  QCAT 174 and Attorney-General v Legal Services Commissioner  QCA 66).
- In all of the circumstances, community protection, personal deterrence and general deterrence loomed large in this case.
- It is my respectful opinion, bearing in mind the above matters, a prison term was the only appropriate sentencing option in this case despite section 9(2)(a) of the PSA.
- In my view, had there been a trial and subsequent conviction, the starting point would have been in the order of 12 months imprisonment, to serve half.
- The appellant however did plead guilty and saved the cost of a five-day trial. That is a significant cost saving. Pleas of guilty are to be encouraged by the courts. He had also remained out of trouble for close to 2 years before the sentence. This fact has some impact on both the head sentence and the period to be served.
- In my view, a head sentence of 9 months imprisonment is appropriate with the appellant being required to serve 3 months.
- For the reasons given, I make the following orders:
- 1.The appeal is allowed.
- 2.I vary the sentence imposed in the Magistrates Court by imposing 9 months (instead of 12 months) imprisonment on each of charges 2, 6, 8, 10, 14, 18, 20, 22, 26, 28, 30, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72 and 75, to be served concurrently with each other and the other terms of imprisonment.
- 3.I vary the parole release date imposed in the Magistrates Court to 11 January 2024.
- 4.I give the parties liberty to apply on any question concerning the numbering of the charges.
- Published Case Name:
Arulogun v Legal Services Commissioner
- Shortened Case Name:
Arulogun v Legal Services Commissioner
 QDC 207
17 Nov 2023