New South Wales Supreme Court CITATION : Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery [2005] NSWSC 1237 HEARING DATE(S) : 16 June, 12 August, 18 October 2005 JUDGMENT DATE : 3 November 2005 JUDGMENT OF : Latham J DECISION : On charges 1 to 4 of the Statement of Charge annexed to the summons in proceedings 13397/2004, on each charge the defendant is sentenced to nine months' imprisonment comprised of a non-parole period of six months; the balance of the term is three months; On charges 5 to 12 of the Statement of Charge the defendant is sentenced to ten months' imprisonment on each charge, with a non-parole period of five months; On charges 13 to 29 of the Statement of Charge the defendant is sentenced to 12 months' imprisonment on each charge, with a non-parole period of six months ; Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, the sentences of imprisonment are suspended subject to the defendant entering bonds under s 12 for the terms of those sentences ; The defendant is to pay the plaintiff's costs in these proceedings. CATCHWORDS : Sentence only - contempt of court - appearances as barrister whilst not the holder of a current practising certificate. Legal Profession Act 1987 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSW CA 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; CASES CITED : 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. Plaintiff - Prothonotary of Supreme Court of New South Wales PARTIES : Defendant - Nicholas Luke McCaffery FILE NUMBER(S) : SC 13397/2004 Plaintiff - R Cogswell SC / L Crowley COUNSEL : Defendant - Self Represented Plaintiff - Ian Knight (Crown Solicitor) SOLICITORS : Defendant - Self Represented LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J 3 NOVEMBER 2005 013397/04 PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v NICHOLAS LUKE MCCAFFERY SENTENCE 1 LATHAM J: Nicholas Luke McCaffery was convicted on 16 June 2005 of 29 counts of contempt, pursuant to proceedings brought by the Prothonotary of this Court. The offences are constituted by 29 appearances by Mr McCaffery in various courts as a barrister, whilst he was not the holder of a current practicing certificate. Mr McCaffery therefore contravened S48B(1) of the Legal Profession Act 1987, and is deemed to be guilty of contempt of any Court where the contravention takes place(s48B(3)). 2 Mr McCaffery was admitted as a solicitor of this Court on 4 July 1986. On 13 August 1993 he was admitted as a barrister and continued to lawfully practice as such until 30 June 2002. 3 As at 1 July 2002, Mr McCaffery failed to renew or apply for a practicing certificate. It appears from the evidence that a combination of factors contributed to this state of affairs. Since October 2001 Mr McCaffery had been suffering from severe depression. He was treated with an antidepressant, but his attention to his work continued to suffer. He was unable to meet his financial commitments, to the extent that he relinquished chambers in April 2002. He was without sufficient funds to renew his practicing certificate in mid 2002, yet he continued to appear in courts and to act as a barrister. He appeared in the Compensation Court on two occasions and in the District Court on two occasions in the period August to September 2002. 4 In October 2002 Mr McCaffery was financially able to renew his practising certificate, but realised that to do so, he would be obliged to supply a statutory declaration to the effect that he had not acted as a barrister in the interim. At this time he again consulted a psychiatrist, Dr Michael Armstrong (see Exhibit 1). He continued to practise as a barrister, without a practising certificate, not willing to perjure himself, yet conscious of the peril he was facing. 5 Between 29 November 2002 and 11 December 2003, Mr McCaffery appeared as a barrister in the Supreme Court, Compensation Court and Local Court on a total of 25 occasions. 6 On 19 December 2003, the New South Wales Bar Association wrote to Mr McCaffery seeking an explanation for his appearances. On 5 January 2004, Mr McCaffery replied, admitting his conduct. The Bar Association then sought undertakings from Mr McCaffery that he would not appear or act in any future proceedings. 7 Those undertakings were supplied on 12 January 2004. Mr McCaffery also supplied the Bar Association with further particulars of his appearances on 19 January 2004. 8 Not surprisingly, the Bar Association's intervention coincided with a relapse into severe depression. Mr McCaffery's marriage broke down, he separated from his wife on 1 February 2004, and he came under the care of Dr Rogoz, who prescribed further antidepressant medication. 9 On 17 December 2004, Mr McCaffery's name was removed from the Roll of Legal Practitioners on the grounds of professional misconduct. (See Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSW CA470.) 10 These were grave instances of contempt of Court. Whilst Mr McCaffery's depression may partly explain his persistent offending, it cannot justify or excuse it. The course of offending behaviour outlined above continued for 14 months after Mr McCaffery had elected not to renew his practising certificate because of his reluctance to "come clean". Had he done so in October 2002, the Court may have regarded his conduct as a temporary lapse. Moreover, the deliberate nature of the contempts represents an affront to the trust which the courts place in the practitioners appearing before them. The administration of justice is jeopardised by such conduct. 11 The lack of any professional indemnity insurance, which is an incident oflawwful practice, exposed those for whom Mr McCaffery acted in the relevant period to significant risk. Fortunately, that risk does not appear to have materialised. However, that fact does little to mitigate Mr McCaffery's criminality. 12 It has been submitted that Mr McCaffery's conduct may properly be characterised as akin to contumacious contempt. In The Registrar of the Court v Maniam (No. 2) (1992) 26 NSWLR 309 the Court noted: " The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: See Australian Consolidated Press Ltd v Morgan (1965)112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a Court order". 13 The term "contumacious" was considered in the context of contempt charges in Wood v Galea (No. 1) (1995) 79 A Crim R 567, where at 570 Hunt CJ at CL held the term to mean "stubbornly resistant to authority; willfully obstinate" or 'willfully and obstinately disobedient to authority". 14 It is not contended that Mr McCaffery intended to degrade the administration of justice by his failure to renew his practising certificate. It is asserted that his intentional disobedience of his obligations under the Legal Profession Act places these offences at the upper end of the range of objective gravity. 15 The assignment of a point on the spectrum of objective gravity for a given offence of contempt is problematic. By its very nature the offence does not lend itself to easy comparisons, given the extremely broad range of conduct capable of amounting to a contempt. This much has been recognised: See Commissioner For Fair Trading v Oliver [2004] NSWSC 722 per Studdert J. 16 That said, the objective features of Mr McCaffery's offences do, in my view, warrant consideration of a custodial penalty. 17 The principles applicable to the punishment of contempt are well established. In Manian (No. 2) Kirby P, as he then was, stated the rationale for punishing a contemnor at 314 as follows: "A conviction of contempt of Court is a conviction of an offence, criminal in nature. Punishment of the convicted Contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, namely, the undisturbed and orderly administration of justice in the Courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the Contemnor, deterring the Contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way: See Director of Public Prosecutions v J John Fairfax & Sons Limited (1987) 8 NSWLR 732 at 741". 18 Other decisions have stressed the importance of specific and general deterrence in determining the sentence to be imposed: See Registrar In Equity v Froome [2001] NSWSC 1029; Pelechowski v Registrar of the Court of Appeal (NSW) (1999) 198 CLR 435 at 485. In this case, the principle of general deterrence is attenuated by Mr McCaffery's depressive illness, which contributed significantly to his offending. 19 In many ways, Mr McCaffery was correct in his comments to the Court that his life has been destroyed. From a relatively prosperous and supportive family environment, he chose the law as his profession for noble motives. He served the law capably for a number of years and enjoyed it immensely. His downfall cannot be more keenly felt, nor more complete, involving as it did the estrangement of his wife and eight year old daughter, to whom he has some access at his mother's house where he now lives. He harbours hopes of returning to work full-time as a law clerk in order to support his wife and child. He now recognises the crippling nature of his depression and is content to receive ongoing treatment. He expressed his abject apologies to the Bar Association, the Court of Appeal, and this Court for his behaviour. 20 At no stage did he attempt to avoid or minimise responsibility for that behaviour. Having regard to the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A, I take into account Mr McCaffery's very real contrition and remorse, his early admissions of guilt, his prior good character, the fact that these were a series of offences over a significant period of time and the abuse by Mr McCaffery of the trust placed in him by the Courts of this State in the sense explored above. 21 I propose discounting the sentences to be imposed by 25 per cent in recognition of the utilitarian value of the acknowledgement of guilt. I have, however, reached the view that nothing less than a custodial sentence is called for. 22 However, taking into account, as I said, the very real nature of Mr McCaffery's contrition and remorse, his prior good character, and the fact that the courts can have confidence, I believe, in his complete rehabilitation, I have determined to suspend the sentences under s 12 of the Crimes (Sentencing Procedure) Act. Accordingly I sentence as follows: On charges 1 to 4 of the Statement of Charge annexed to the summons in proceedings 13397 of 2004, on each charge I sentence the defendant to nine months imprisonment comprised of a non-parole period of six months, the balance of the term being three months. On charges 5 to 12 of the Statement of Charge I sentence the defendant to ten months imprisonment on each charge with a non-parole period of five months, expiring on 2 June 2006. On charges 13 to 29 of the Statement of Charge I sentence the defendant to 12 months imprisonment on each charge with a non-parole period of six months. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 , I suspend the sentences of imprisonment, subject to the defendant entering bonds under s 12 with the conditions recognised by s 95 of the Crimes (Sentencing Procedure) Act for the terms of those sentences. The further order that I make is that the defendant is to pay the plaintiff's costs in these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.