Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big wheel and it seems that it will long stay that way.’

I have long been a fan of his extremely colourful and yet less-is-more webpage, which has said, for as long as I can remember, in yellow and red text surrounded by blue fire ‘We at Issac [B] and Co make a firm commitment to a flexible, approach to law’.  Such heterodox ebullience can only be tolerated so long in the dark suited depressed salaryman world of the Melbourne legal fraternity, and the other day, the sombre might of the law came down on the iconoclast for what the humourless powers that be characterised as too much flexibility.

Condign punishment was meted out by The Age by the publication of an old photo. VCAT’s Legal Practice List has also had a go, cancelling his practising certificate and telling him not to think about asking for a new one for 9 months: Law Institute of Victoria v IAB [2008] VCAT 1998 (an interlocutory decision may be found at [2007] VCAT 808).  It was a plea bargain.  In exchange for the downgrading of some charges, and an agreement as to the orders which both prosecutor and respondent would submit to the Tribunal were appropriate, Issac admitted the facts alleged against him (holding out a convicted heroin dealer without a law degree as a solicitor of the firm, playing loose with the money of an old man with dementia, the usual trust account bizzo) and avoided a trial of the facts.  When your plea bargain position is that your practising certificate should be cancelled, and you should pay the costs of the proceedings, things is looking pretty grim.  But they got worse when the Tribunal did not accept the parties’ joint submissions in relation to orders — it said the Law Institute had been induced into submitting that ‘manifestly inadequate’ orders were appropriate — and increased the period before which application for a new certificate is proscribed by 50%.

Many people have discussed the fall of the colourful identity with me. Many have made the mistake of figuring he has been suspended for 9 months.  Not so.  His practising certificate has been cancelled.  VCAT’s Judge Ross went out of his way to comment on his lack of contrition.  Any future application for a practising certificate will be governed by the principles in the readmission cases. Demonstration of the turning over of a very shiny pea-green new leaf would presumably be necessary.  Paragraph 77 struck an ominous tone:

’76.  Mr [B]’s lack of remorse and insight into his wrongdoing is relevant to our assessment of an appropriate penalty and we have taken these matters into account.

77.  The extent of Mr [B]’s contrition and insight into his wrongdoing will also be relevant in the context of a future application for a practising certificate.’

VCAT said this about plea bargaining in disciplinary matters:

‘As we indicated earlier, the parties have agreed that the appropriate penalty in respect of these matters is the cancellation of Mr [B]’s practising certificate, effective from 4 October 2008, and an order that he may not apply for a practising certificate before 4 April 2009.

When the agreement was first tendered, on Thursday 4 September, we informed the parties that while the Tribunal would place significant weight on the agreement of the parties, we were not bound to adopt the penalty proposed. Ultimately the question of the appropriate penalty in a particular case is a matter for the Tribunal. We also indicated that we would be assisted by submissions from the parties on the appropriateness of the penalty proposed. The proceedings were then adjourned until 8 September and on that day counsel for both parties made submissions in support of the penalty proposed. Before turning to those submissions we propose to deal with the weight to be accorded to the parties’ agreement with respect to penalty.

The impact of a plea bargain on the sentencing discretion in criminal proceedings was considered by the High Court in Malvaso v R in which their Honours Mason CJ; Brennan J; and Gaudron J observed:

“The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.”[28]

In the matters before us no party demurred from the proposition that the Tribunal was not bound to apply the parties’ agreement with respect to penalty. The question is: in what circumstances would the Tribunal depart from the parties’ agreement?

A general principle of judicial restraint in the scrutiny of proposed settlements was enunciated early in the history of the Trade Practices Act. This approach was extended to the submission of agreed pecuniary penalties. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission, Burchett and Kiefel JJ observed in their joint judgment:

“There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.”[29]

In proceedings in respect of civil penalties there is now a well established line of authority in support of the proposition that where a regulatory body and a respondent have reached a negotiated settlement and the penalty proposed is, broadly speaking, within the ‘permissible range’ (having regard to all the circumstances) the court (or in this case the Tribunal) should not depart from the agreed sanction[30]. We propose to adopt the same approach to the matters before us. The question then becomes whether the sanction proposed is within the permissible range.

The nature and gravity of the misconduct is central to the process of determining an appropriate sanction. The principle of proportionality – which operates in criminal sentencing – is also applicable. The sanction imposed should never exceed that which can be justified as appropriate or proportionate to the gravity of the misconduct.

As we indicated earlier, the parties have agreed that the appropriate penalty in respect of these matters is the cancellation of [Mr B’s] practising certificate, effective from 4 October 2008, and an order that he may not apply for a practising certificate before 4 April 2009.’

Thanks go to a marvellous photographer who goes by the moniker of Mugsley on Flickr for the photo of Issac’s splendid chambers right across the lane from the Supreme Court where his name remains inscribed on the Roll of Practitioners.

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