The Need to Plead when Guilt is a Given 1

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Monday, March 28th, 2016
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There are tens of thousands of building practitioners registered in Australia with various practitioner oversight bodies.

Unfortunately, disciplinary jurisdictions are getting bogged down in processing misconduct enquiries, such is the volume of practitioner recalcitrance particularly in the residential sector.

One of the reasons that matters get bogged down and the main reason that hearings take too long to conclude is the habit of many respondents who are often abetted by their advocates in trying to contest the incontestable and endeavouring to resile from the indefensible. This depletes the public purse, makes decision makers cynical and does not bode well with respect to the decision makers sentencing disposition.

So if a respondent practitioner has a prima facie case to answer, then if he or she has a molecule of intelligence then fessing up is the only way to go. Decision makers will afford no sympathy when they find against a respondent if it was abundantly clear that there was no defence, because its a waste of their time and a waste of the Tribunal’s time.

In the quasi-criminal arena of practitioner misconduct, the joke “whats the tenth commandment? Don’t admit it” is no joke. If you don’t admit it and mitigate with skill and sincerity, it can be the difference between very serious censure and a more constrained finding. Decision makers are heartened if they feel that a respondent “gets it,” can change and won’t do it again.

“Obfuscationists” on the other hand understandably incur the wrath of the decision makers as they don’t “get it.” This leads to a decision maker harbouring a fear that they are dealing with a recidivist who has no regard for public dictates, a person who doesn’t give a damn that they have harmed a fellow citizen.

So what are the essential ingredients of a good plea?

If the evidence imputes guilt and the decision is made to enter a plea of guilt, then it is very important to plead and make mention of any mitigating factors. Here is a list of ingredients on point from the publication Disciplinary Hearings and Advocacy that I co-authored with highly regarded barrister Sav Korica.

  • Contrition and remorse
  • Cooperation with the prosecutor and the investigatory body
  • Intimate knowledge of the facts and the law on point
  • The availability of apposite fresh references from referees of good repute
  • Knowledge of priors or lack thereof
  • If no real harm has been occasioned, submissions verifying as much
  • Evidence of financials – earnings need to be revealed, outgoings need to be revealed
  • Evidence as to whether there are any dependents  and the impact an adverse finding will have on them
  • Evidence that can be produced that verify the changes that have been introduced systemically to avoid repeat occurrence
  • Evidence of any reparation that has been effected

If the respondent invests time in preparing a plea of mitigation that traverses this mitigation terrain, then it will provide most decision makers with some reassurance that the respondent engaged in one-off conduct, has learnt from the experience and would in all likelihood not become a repeat offender. As there is High Court authority that an early plea translates into a sentencing discount, the election to plea rather than contest the incontestable is prudent.

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  1. Branko Mladichek

    Your article Kim highlights how poorly has disciplinary legislation been conceived and implemented. There are tens of thousands of offences against Building Act 1993 and Domestic Building Contracts Act 1995 yet when you look at the disciplinary register there are only hundred or so of successful prosecutions. This means that invariably builders get to re offend with impunity.

    It is just too difficult, expensive, time consuming and unrewarding for homeowners to take on builders for breaches of contract or warranties. The system is stacked in favour of builders, against consumers, and to the advantage of lawyers.

    The current disciplinary step should be the second step, the appeal. The first step should be on the spot hefty fines and demerit point system handed out by building and construction police cruising sites and looking for offences. It's only the pocket hit and fear of suspension and de registation that will prompt many builders to lift their game.

    For too long too many builders have been getting away with under delivering on their promise to the point that it has become fraud against consumer of national proportions and abetted by the corrupt administration of building legislation.

    If we continue to build housing stock with almost zero control we are fast tracking to a third world status.