The Prothonotary v X

[2024] NSWCA 251

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

The Prothonotary v X [2024] NSWCA 251

Hearing dates:

On the papers

Date of orders:

23 October 2024; 31 October 2024

Decision date:

31 October 2024

Before:

Ward P; Payne JA; Mitchelmore JA

Decision:

1.   Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers.

2.   Order that the name of the respondent, [redacted], be removed from the Roll of Australian Lawyers.

3.   Order that the respondent pay the applicant’s costs of these proceedings.

4. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground set out in 8(1)(c) of the Act, order that the name of the respondent be suppressed and that the respondent be referred to by the pseudonym “X”, this order to apply throughout the Commonwealth of Australia for a period of 20 years (unless extended).

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted on two occasions of offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supply prohibited drugs, not less than commercial quantity and s 193C(2) of the Crimes Act 1900 (NSW) of dealing with the proceeds of crime – second set of offending occurred 14 months after first conviction, while respondent was serving an intensive correction order – sentence of imprisonment – relevance of principles in Council of the Law Society of NSW v Parente [2019] NSWCA 33 in circumstances of reoffending – declaration that respondent is not a fit and proper person to remain on the roll of Australian lawyers

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7,8, 10

Crimes (Sentencing Procedure) Act 1999 (NSW), s 7

Crimes Act 1900 (NSW), s 193C

Criminal Procedure Act 1986 (NSW), s 166

Drug Misuse and Trafficking Act 1985 (NSW), s 25

Evidence Act 1995 (NSW), ss 91, 191

Legal Profession Uniform Law (NSW), ss 17, 297

Legal Profession Uniform Admission Rules 2015, reg 10

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57

Council of the Law Society of New South Wales v Green [2022] NSWCA 257

Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53

Council of the Law Society of New South Wales v Parente [2019] NSWCA 33

New South Wales Bar Association v Cummins [2001] NSWCA 284

New South Wales Bar Association v Hamman [1999] NSWCA 404

Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320

Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230

Prothonotary v Gregory [2017] NSWCA 101

R v Henry (1999) 46 NSWLR 346

R v X (a pseudonym) [2023] NSWDC 34

Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93

Category:

Principal judgment

Parties:

The Prothonotary of the Supreme Court of New South Wales (Applicant)
“X” (a pseudonym) (Respondent)

Representation:

Counsel:
K Curry (Applicant)

Solicitors:
Crown Solicitor’s Office (Applicant)
“X” (a pseudonym) (self represented)

File Number(s):

2024/211288

Publication restriction:

Nil

JUDGMENT

1. THE COURT: By summons filed on 7 June 2024, the Prothonotary of the Supreme Court of New South Wales (the applicant) seeks a declaration that the respondent is not a fit and proper person to remain on the roll of Australian lawyers (the Supreme Court roll) and orders that the name of the respondent be removed from the Supreme Court roll and that the respondent pay the applicant’s costs of the proceedings. The Law Society of New South Wales had referred the matter to the Prothonotary on 18 October 2021 for consideration of such an application.

2. The respondent has been referred to on the Court file by the pseudonym “X” by reason of an order made pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Suppression Act) by the then Registrar of the Court of Appeal on 20 June 2024 that the name of the respondent be suppressed and in its place a pseudonym of “X” be used until the first available hearing before a judge. A suppression order had previously been made in the District Court pursuant to s 7 of the Suppression Act on the grounds set out in ss 8(1)(a) and 8(1)(c) of that Act (see R v X (a pseudonym) [2023] NSWDC 344).

3. No application was made for an extension of the suppression order, the matter now being before the Court for hearing on the papers. In circumstances where applications to remove the name of a lawyer from the Supreme Court roll are brought in the public interest and for the protection of the public, in our view it is not appropriate for there to be a further suppression order. However, when delivering judgment we will permit the parties to make brief submissions if any continuation of the order is required.

4. The basis for the relief sought by the applicant is the respondent’s conviction and sentence in the District Court (on 26 March 2021 and 1 September 2023, respectively) for two sets of serious criminal offences involving the supply of prohibited drugs and dealing with property reasonably suspected of being the proceeds of crime. The respondent pleaded guilty to those offences.

5. The applicant submits that the respondent’s conviction and sentence for serious criminal offending (the offences occurring in quick succession and the second set of offences while the respondent was subject to an intensive correction order following the first set of offences) demonstrates the respondent’s present unfitness to practise as a lawyer and the applicant submits that this is likely to continue indefinitely. The applicant contends that, notwithstanding the steps the respondent has taken towards his rehabilitation (as explained below), the respondent’s conduct is inconsistent with the qualities essential for the conduct of legal practice. The applicant submits that the offending, taken as a whole, was of a quality such that it would be harmful to the reputation of the legal profession, and to public confidence in it, for the respondent’s name to remain on the Supreme Court roll.

6. The respondent consents to the orders sought by the applicant (subject to the Court’s own assessment of the appropriateness of the orders, having regard to the respondent’s evidence on this application to which we refer below) but raises for consideration the issue as to whether this Court should be satisfied that he is unlikely to be unfit to practise as a lawyer for the indefinite future. In his written submissions the election not to oppose the orders sought by the applicant was explained by reference to the respondent’s ongoing recovery and financial constraints. Both parties consented to the matter being determined on the papers.

7. For the following reasons, the relief sought by the applicant should be granted.

Jurisdiction and applicable principles

8. The applicant here invokes the Court’s inherent jurisdiction over the control and discipline of lawyers in the State in seeking an order that the respondent’s name be removed from the Supreme Court roll under the Legal Profession Uniform Law (NSW) (the Uniform Law). The jurisdiction is protective not punitive.

9. What must be determined is whether, at the time of the hearing, the respondent is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner’s name appears; and whether the practitioner is likely to be unfit in the indefinite future. As noted in Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Ward P, Kirk JA and Griffiths AJA) at [58], the question to be determined in an application for removal from the roll requires the application of established principles reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession (the Court there citing Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [12] (per Basten and Meagher JJA and Simpson AJA)).

10. Section 297(2) of the Uniform Law provides that for the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in sub-s (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession and to any other relevant matters. Relevantly, when considering whether a person is a fit and proper person to be admitted to the Australian legal profession, s 17(2) of the Uniform Law provides that the designated local regulatory authority must have regard to the matters specified in the Legal Profession Uniform Admission Rules 2015 (the Admission Rules) for the purposes of this section. Included in the matters which regulation 10 of the Admission Rules requires to be taken into account, for the purpose of s 17(2)(b) in determining whether someone is a fit and proper person, are: whether the person is currently of good fame and character (see (1)(f)) and whether the person has been found guilty of an offence including a spent offence in Australia or in a foreign country and, if so, the nature of the offence, how long ago the offence was committed, and the person’s age when the offence was committed (see (1)(h)).

11. The onus is on the applicant to show that the respondent is not a fit and proper person; that being the civil onus applying the Briginshaw standard (from Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) (see Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 (Prothonotary v P); Prothonotary v Gregory [2017] NSWCA 101 at [25] (Bathurst CJ, Beazley P, Sackville AJA)).

12. The fact that the practitioner has a criminal conviction, even for a serious offence, is not necessarily a sufficient reason for an order removing that person from the roll; rather, it is necessary to assess the nature and quality of the criminal conduct and its seriousness (see Prothonotary v P; New South Wales Bar Association v Hamman [1999] NSWCA 404 per Mason P at [101]).

13. Relevantly, in Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente), to which the respondent here refers, Brereton JA stated at [50] that:

Often, a conviction for an offence accompanied by a sentence of imprisonment will be incompatible with “good fame and character”, not only because of the underlying conduct, but also because of the public disgrace involved. To oversimplify the position, persons who commit serious offences against the law are not readily accommodated in a profession that is beholden to upholding the laws and usages of this State. However, while the deterrent effect of knowledge that serious offending is incompatible with membership of the profession is important, so too is allowing that a person of otherwise upright character might for any number of reasons once lapse, and what that lapse speaks of the person’s character will differ according to the circumstances and causes of the particular lapse. For that reason, not every conviction – even resulting in imprisonment – is incompatible with membership of the profession. The profession can tolerate persons of otherwise good character who have once lapsed, even gravely, where that conduct does not reflect on qualities regarded as fundamental to membership of the profession, or (even if it does) was aberrant – or, “out of character”.

Statement of Agreed Facts

14. A Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995 (NSW) (the Evidence Act) was filed on 22 July 2024. In summary, those Agreed Facts include the following (paragraph references being to the Statement of Agreed Facts).

15. On 20 February 2015, the respondent was admitted as a lawyer to the Supreme Court of New South Wales, and his name was entered on the Supreme Court roll; and on 3 September 2015, the respondent was admitted to the High Court as a legal practitioner ([1]). The respondent has never been admitted in any other jurisdiction in Australia or New Zealand ([2]).

16. The respondent held a practising certificate in New South Wales each practising year from 30 March 2015 ([3]) and surrendered his practising certificate in New South Wales on 9 January 2020 ([4]).

17. Although not an agreed fact, it appears not to be disputed that from March 2015 to February 2019, the respondent was employed as a family law solicitor at various law firms.

18. The Statement of Agreed Facts records the respondent’s criminal offending, conviction and sentence for crimes in 2019 and 2022, respectively.

2019 Criminal Offending

19. On 4 December 2019, police attended a large unit complex in Newtown with separate blocks divided by public walkways ([5]) and observed the respondent leaving one of the units at the complex carrying a black duffle bag ([6]). Police approached the respondent, asked for identification (which he produced) ([7]) and asked if he had anything on him (which he initially denied) ([8]). The respondent then admitted that he had some “ice” (methylamphetamine) and some “G” in his bag ([8]). The respondent was arrested and cautioned ([9]). The respondent denied selling any drugs ([10]). Police located another small sealed bag, which the respondent said contained the drug “ice” ([11]).

20. All seized suspected drugs were weighed in the custody area of Newton Police Station and were later analysed. The respondent had in his possession 34.17g of methylamphetamine, distributed throughout several bags and 92.3g of gamma-butyrolactone (GBL) in a black spray bottle ([12]).

21. On 5 December 2019, a search warrant was executed at the respondent’s premises ([13]). During the search police seized 261.48g of methylamphetamine, 129.18g of 3, 4-methylenedioxymethamphetamine (ecstasy) and 2,808.9g of GBL ([14]). Police also located $39,725 in a safe accessed using a key on the respondent’s keyring ([15]).

22. Not included in the Statement of Agreed Facts but noted in the subsequent remarks on sentence was the following as to the items located at the respondent’s home during execution of the search warrant on 5 December 2019:

The drugs were found concealed in various packages and vessels distributed throughout the kitchen, bedroom and hallway of the unit. The fact sheet identifies the discrete packages, of which there were many smaller packages. Police located resealable bags, scales, empty vials and droppers, two manual capping kits and a label maker. Police also located unused envelopes and registered post consignment stickers with usernames next to each sticker, and ledgers. The offender was using the postal service for numerous drug supplies; this includes storage of numerous express post ‘sender to keep’ tracking stickers in an exercise book. The offender recorded the date express post parcels had been sent at the top of the page and placed the tracking stickers on the left-hand side. An online identity was recorded next to each sticker to allow the offender to match the identity of a person to the packages he sent. Some of the identities made obvious references to drugs, such as “drug addict 101”, and “Crystal dream”.

23. On 26 March 2021, the respondent pleaded guilty and was convicted of three charges of supply prohibited drugs, not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) and one charge of dealing with the proceeds of crime contrary to s 193C(2) of the Crimes Act 1900 (NSW) (Crimes Act), that being a related offence under s 166 of the Criminal Procedure Act 1986 (NSW) ([16]-[17]; [21]).

24. The Statement of Agreed Facts records the documents tendered in the Crown case on sentence and the evidence tendered by the respondent on sentence, including that all the affidavits and character references tendered by the respondent confirmed his remorse for his offending ([18]-[20]).

25. The sentencing judge (Culver DCJ) found the offending was not an isolated incident and that the respondent had been using the dark web for the distribution of drugs which involved a degree of sophistication, it being access to an extensive criminal network, which is designed principally to avoid detection by police. Her Honour found the offences were objectively very serious and noted three different types of prohibited drugs in commercial quantities were found in the respondent’s possession at the one time.

26. The subjective evidence relied upon by the respondent included a report dated 22 January 2021 by a forensic psychiatrist, Dr Rafe Pulley, who opined that the respondent suffered from major depressive disorder, post-traumatic stress disorder and methamphetamine dependence disorder (see Agreed Facts at [19(a)]); and a report from Junior Toomalati, One80TC Residential Rehabilitation, stating that the respondent had graduated from a 12-month residential rehabilitation program, that his personal achievements during the program were considerable and that he had an offer of ongoing work as a graduate support worker at that facility (see Agreed Facts at [19(b)]).

27. In her remarks on sentence, Culver DCJ accepted the respondent’s evidence that he had been introduced to methamphetamine during his employment as a paralegal in 2013 to 2014 and noted that, while the respondent eventually found work in another firm, by this stage his addiction to methamphetamine was “reasonably entrenched” and his performance declined to the point where the respondent was “laid off from work”; and that, while the respondent was able to find employment twice more for short periods, he was “eventually fired due to the consequence of a rampant methamphetamine addiction”. Her Honour found the respondent to have taken full responsibility for his actions and that he was making good progress with his rehabilitation. Her Honour stated that she had “never seen a case with such profound rehabilitation as demonstrated here”.

28. Her Honour noted the respondent’s ongoing need for rehabilitation. Her Honour [redacted] imposed an aggregate sentence of three years imprisonment commencing on 26 March 2021 and expiring on 25 March 2024, to be served in the community by way of an intensive correction order (ICO) under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (see Agreed Facts at [22]). The ICO was subject to the conditions that the respondent: be of good behaviour, submit to supervision by Windsor Community Corrections Office and complete 200 hours of community service ([22]).

2022 Criminal Offending

29. On 20 May 2022 (while the respondent was still serving his ICO), the respondent was subject to a breath test by police on King Street, Newtown, when his vehicle was pulled over for random breath testing ([23]). The police officer observed large amounts of crystals in between the respondent’s legs and in the footwell of the vehicle and, suspecting the crystals to be methylamphetamine, police placed the respondent under arrest for the possession of a prohibited drug ([24]). The respondent denied having more prohibited drugs in his possession ([24]).

30. The respondent submitted to an oral fluid test which produced a positive detection of methylamphetamine ([25]) and admitted that the substance in his vehicle was “ice” but denied that he was in the business of supply that evening ([26]).

31. The police searched the vehicle and found white crystals throughout the front footwell of the car and in a clear resealable bag on the driver’s seat ([27]). Police also located another small resealable bag in the respondent’s pocket as well as Australian currency totalling $1,090 ([28]). Police located a coffee cup in the middle of the vehicle which was half full of coffee and had a number of crystals floating in the liquid; and the respondent admitted to dumping an amount of methylamphetamine into a cup of coffee ([29]). Police also located $69,080 in 10 bundles in an express post box inside a green Woolworths bag in the vehicle ([30]).

32. The total of the methylamphetamine seized was 133.9 grams and the total money seized was $70,170 ([32]-[33]).

29. The respondent provided a further sample of oral fluid for analysis which was subsequently analysed and returned a positive result to methylamphetamine and 3, 4-methylenedioxymethampetamine ([34]).

30. The respondent was charged with and pleaded guilty to one count of supply prohibited drugs, not less than the indictable quantity but less than the commercial quantity, contrary to s 25(1) of the DMT Act and one count of dealing with property reasonably suspected of being the proceeds of crime contrary to s 193C(2) of the Crimes Act ([35]).

31. At the sentencing hearing, the respondent relied upon a further report, dated 12 August 2023, of Dr Pulley in which Dr Pulley opined that the respondent continued to suffer from major depressive disorder, post-traumatic stress disorder, and methamphetamine dependence disorder. Dr Pulley considered that the respondent had good prospects of rehabilitation but noted that if his condition remained untreated, he would continue to suffer from symptoms that would increase his propensity to relapse and reoffend ([36]).

32. A sentencing assessment report dated 18 August 2023 prepared by Community Corrections was also relied upon at the sentencing hearing, in which the respondent was assessed as having a “medium” risk of reoffending ([37]). The respondent was noted to have an amphetamine dependence. The report stated that, although the respondent had completed a 12-month residential rehabilitation program in January 2022, the respondent struggled to maintain his abstinence outside this environment; and noted that the respondent had been using approximately $900 a day worth of the drug ice intravenously at the time of the offending and had acquired larger amounts of the drug to sell as his daily use started to outstrip his earnings ([37]).

33. The sentencing judge (Newlinds SC DCJ) determined that, given the earlier ICO, the only appropriate penalty was a term of full-time imprisonment ([38]). [Redacted] the respondent was sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of 13 months; the indicative head sentence for each count was three years ([39]).

After release from custody

38. The respondent was released from prison on 11 October 2023 and completed his parole period on 30 March 2024 ([43]). The Agreed Facts note that following the conclusion of the parole period the respondent would have no further restrictions ([43]).

39. By the end of November 2023, the respondent had completed all the requirements of the community service work conditions required by the ICO ([44]).

40. The respondent has undertaken a number of outreach drug and alcohol rehabilitation programs following his release from prison ([45]), including attendance at Narcotic Anonymous, counselling and regular attendance upon his General Practitioner.

41. The respondent is currently employed full-time as a Parts Manager at a transport refrigeration company ([46]).

Evidence on this application

42. The applicant relies upon his affidavit sworn 11 July 2024 and the documents exhibited thereto.

43. The respondent relies on two affidavits sworn by him (the first, an affidavit sworn on 5 September 2024; the second, an affidavit sworn on 12 September 2024 annexing a psychiatric report dated 9 September of Dr Pulley) and an affidavit affirmed on 12 September 2024 by a friend, Catherine Jenkins, who is a solicitor and a former colleague of the respondent.

44. In his 5 September 2024 affidavit, the respondent deposes that he has maintained his abstinence since his release from custody on 11 October 2023 and sets out (at [94]-[98]) the steps he is continuing to take in relation to his ongoing rehabilitation. At [147], the respondent deposes (relying on Dr Pulley’s report in support of this belief) that:

While I may not be fit to practice [sic] law right this very moment, I believe that with further rehabilitation and continued abstinence, I may be in the future fit to practice [sic] …

45. At [148]-[149] of his first affidavit, the respondent goes on to depose that:

I accept that the Court may form the view that at present, I do not meet the criteria of a ‘fit and proper’ person to practice [sic] law and as a result, the court may impose a period of suspension along with various conditions being placed on my practicing [sic] certificate if I were to practice [sic] law in the future. I understand the necessity of ensuring the protection of the community and take full responsibility for my previous offending and how it has consequently affected my standing within the community.

I wish to reassure the Court that irrespective of the outcome of these proceedings, I will accept any order/condition(s) which the Court may make in these proceedings to guarantee the safety of the community and uphold the ethical standards of the legal industry.

46. In his latest report, dated 9 September 2024 (annexure A to the respondent’s second affidavit), Dr Pulley opines that the respondent’s past diagnoses of major depressive disorder, post-traumatic stress disorder and stimulant use disorder are all in sustained remission (at [19] of his report). Dr Pulley opines that the respondent is very unlikely to engage in further offending but notes that there is a possibility of relapse of substance use (at [23] of his report).

47. Insofar as the respondent’s first affidavit deposes to other matters, such as the circumstances leading to his offending, the applicant (while he takes no issue with this material), points out that he is not in a position to test the various claims made by the applicant as to the first law firm in which he worked and the applicant submits that the Statement of Agreed Facts should form the basis of the factual findings made by the Court. In particular, the applicant notes that the respondent has made serious allegations against various solicitors that are presently the subject of an unresolved complaint to the Office of Legal Services Commissioner. We agree that it is neither necessary, nor would it be appropriate, to make factual findings regarding these allegations.

48. The applicant notes that, as the respondent does not oppose the relief sought and seeks to rely upon the findings made in the respective remarks on sentence, s 91 of the Evidence Act does not preclude reliance upon statements in those judgments to prove a fact or facts in issue in the proceedings in the context of disciplinary proceedings.

Applicant’s submissions

49. The applicant submits that, by his conduct as set out in the Statement of Agreed Facts, the respondent is not at present a fit and proper person to remain on the Supreme Court roll, noting the explanation of the interrelated interests involved in the legal profession given by Spigelman CJ, when explaining the importance of honesty and integrity in the legal profession in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [19]-[20]; and what was said by this Court in Prothonotary v P at [15] per Young CJ in Eq (Meagher and Tobias JJA agreeing), namely that:

There is no escaping from the general feeling in the community that there is no place in the legal profession for people with a serious criminal record. There is no place in the profession for drug addicts.

50. The applicant submits that the respondent’s addiction is not in question, pointing out that (despite successfully completing a residential rehabilitation program and utilising many of the same services the respondent now has in place) after the first set of offences the respondent quickly relapsed into significant drug use leading to the second set of serious criminal offences. While the applicant acknowledges the significant steps the respondent is presently undertaking towards his rehabilitation, the applicant submits that it is too soon to determine whether the respondent will be able to maintain his abstinence long term and in the face of future significant life stressors.

51. The applicant accepts that there is evidence from which the Court could find the respondent is genuinely remorseful for his actions and has taken steps towards his rehabilitation. However, the applicant submits that there are two issues that remain that result in the respondent’s present unfitness to practise: first, as to the whether the Court could be satisfied at this point as to the respondent’s capacity not to relapse and, second, the gravity of the respondent’s conduct in committing two sets of serious criminal offences within a period of approximately three years.

52. The applicant says that the respondent’s offending was premeditated and was committed to fund his lifestyle, including his drug habit; and emphasises that the second set of offences occurred at a time when the respondent knew he was to be of good behaviour. The applicant says that, while the respondent’s misconduct was not in the course of the practice of law, his drug addiction led to his performance deteriorating at work.

53. The applicant submits that, although the present case may have similarities with Parente, there are material differences. The applicant says that the offending conduct here was objectively more serious; and points out that it involved two separate sets of offending (referring to what was said by Brereton JA in Parente at [60] and arguing that, while the profession may be able to tolerate one lapse it is difficult to extend the same approach to two).

54. The applicant submits that the respondent’s conduct is inconsistent with the qualities essential for the conduct of legal practice and that there would be an incongruity in accepting that a person sentenced to a term of imprisonment for serious criminal conduct on two occasions could be described as meeting the highest standards of integrity. While acknowledging the evidence as to the respondent’s remorse and steps to rehabilitation, the applicant submits that the respondent is not presently fit to practise and is likely to be unfit in the indefinite future, such that the removal of his name from the Supreme Court roll is appropriate.

55. As to costs, the applicant submits that there is no reason that costs should not follow the event, pointing out that the need for the proceedings to be commenced was caused by the respondent’s criminal convictions and that orders for the removal of his name from the Supreme Court roll could not have been made by consent (and hence the proceedings were necessary).

Respondent’s submissions

56. The respondent has set out in his submissions his academic qualifications and his practice in the area of family law from 2013 (as a paralegal or graduate prior to his admission as a solicitor in early 2015) to 2019 and the development of his dependency on drugs (which he ascribes to incidents of bullying, sexual harassment and the introduction to drugs during that period), noting that he voluntarily left the legal profession in February 2019, before being charged with drug related offences in December 2019 (at a time when he was 27 years old).

57. The respondent has also there referred to his family background, including his witnessing of regular domestic violence in the home in his childhood; that he was a victim of child sexual abuse by a school teacher when he was in year 9 at school; that following the separation of his parents he faced a deprived upbringing; and to his mother’s battle with cancer and his role as her primary carer when in his early teens – experiences that he says have had a profound impact on his mental health. The respondent also refers to his introduction in his first workplace in the legal profession to methylamphetamine as well as workplace bullying and harassment. The respondent submits that his consumption of drugs in the environment in which this occurred, normalised such behaviour and that this means that his addiction was not wholly a matter of personal choice (referring to R v Henry (1999) 46 NSWLR 346 at [273] (Wood CJ at CL)).

58. The respondent, who had just turned 28 years old at the time of his arrest for the second set of drug offences, has explained that his re-use of drugs (while he was subject to the ICO) commenced at a time when his mental health had worsened following the death of a close friend and supporter of his abstinence. The respondent also refers to having suffered through a series of traumatic events in custody after being refused bail following his arrest for the second set of drug offences.

59. The respondent submits that he has expressed genuine remorse and contrition; and has insight into his offending as evidenced by his consent to the relief sought by the applicant, his first-hand expressions of remorse in his affidavit, the accounts by Dr Pulley and others of his remorse and insight, and his ongoing volunteer work with the St Vincent De Paul Society. The respondent points to his positive conduct in custody (evidenced by the certificates and programs undertaken there and when he was on bail) and to his active involvement in ongoing drug and alcohol treatment, which he submits demonstrates that he is a pro-socially minded person and positively informs his prospects of rehabilitation.

60. The respondent has set out in his submissions, while accepting his responsibility for his relapse into drug use, the factors which he says were largely outside of his control and which substantially contributed to the relapse, and he says these were exacerbated by the death of his friend, the COVID-19 pandemic and further violent relationships.

61. The respondent has also listed in his submissions his proactive engagement in various intensive therapeutic rehabilitation programs after his release from custody.

62. The respondent submits that his prospects of rehabilitation are good having regard to the following: that his offending is directly linked to his substance use and mental health symptomology; that there is no suggestion of other criminogenic factors which might increase the risk of reoffending (such as supply purely for greed or profit); his positive and pro-social conduct in custody and since his release; that he has familial support on his release from custody, particularly where there is now an appreciation of the arduous task that substance abuse presents, evidenced by the additional measures his family is prepared to take to support him; his acceptance into and willingness to attend ongoing psychiatric programs; his insight into factors contributing to the prospects of relapse and reoffending; and that he had commenced rehabilitation, recognising the issue of his addiction, at the time of his offending.

63. In the context of this application, the respondent refers to the application of the relevant principles in Parente, where Basten and Meagher JJA stated at [27] that “disbarment is not an inevitable consequence of conviction for” offending involving the supply of significant quantities of drugs; and of Brereton JA at [50] that “[n]ot every conviction – even resulting in imprisonment – is incompatible with membership of the profession. The profession can tolerate persons of otherwise good character who have once lapsed, even gravely, where that conduct does not reflect on qualities regarded as fundamental to membership of the profession, or (even if it does) was aberrant – or, “out of character””.

64. The respondent also refers to Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93, where Campbell JA, with whom Hodgson JA and Handley AJA agreed, said at [54] that, if the decision maker is of the view that a person is presently unfit to practise but after a particular time will once again be fit to practise then the appropriate order is suspension for that period of time and that removal from the roll is only appropriate when a legal practitioner is unfit to practise and suspension for a particular period is not appropriate; and to Prothonotary v P to which reference has been made above.

65. The respondent submits that, if the Court were to find that, at present, he is unfit to practise law, such unfitness is unlikely to be indefinite having regard to the evidence on which he relies (referred to above); and suggests that an order for removal may not be appropriate but, rather, an order for his suspension could be considered.

Determination

66. We are satisfied to the requisite standard (the Briginshaw standard) that the respondent is not at present a fit and proper person to practise law, having regard to the nature and temporal proximity of his criminal convictions (two sets of serious drug supply offences committed within less than three years) and the fact that he engaged in the offending giving rise to the second set of convictions while he was subject to an ICO requiring him to be of good behaviour.

67. On the one hand, the respondent was relatively young when the offences were committed (27-28 years of age); the conduct was not over a long period (the first set of offences committed in December 2019 and the second set of offences committed in May 2022); and the offending was not directly linked to the respondent’s practice as a solicitor (albeit that his drug use was having a detrimental impact on his ability to perform his obligations as a solicitor). The respondent had voluntarily “left the legal profession” in February 2019 some months before his arrest in December 2019 and surrendered his practising certificate in January 2020. Moreover, the respondent has exhibited genuine remorse, has expressed insight into the seriousness of his offending and is taking positive steps towards rehabilitation. Unlike the position in Parente, the respondent has gone on oath to explain the circumstances of his offending and to express his contrition and his intention not to reoffend.

68. However, on the other hand, the evidence as to the circumstances leading up to the respondent’s offending, which the respondent himself links to the impact of his deprived upbringing and mental stability, gives rise to concern as to the possibility of relapse into substance abuse (and the concomitant risk of further offending). In our opinion, it is impossible to form a view as to the time at which the respondent’s recovery will be such that he is then fit to practise. That depends on the outcome of the rehabilitation and recovery process that the respondent acknowledges is at present ongoing. While the prospects of rehabilitation appear strong, having regard to the respondent’s family support, remorse, insight into his offending and commitment to adherence to recovery programs, there has in our view been insufficient time to assess the likely longevity of his recovery. The respondent himself accepts that it is an ongoing process and it must be remembered that, when sentencing for the first set of offences, the sentencing judge also considered that there were strong prospects of rehabilitation yet the respondent relapsed within a relatively short period of time thereafter when faced with stressors in his personal life and the breakdown of his then support systems.

69. In those circumstances it must be concluded that the likelihood is that the respondent will continue to be unfit to practise for an indefinite period. In our opinion an order for suspension of the respondent’s practising certificate is therefore not appropriate. The honesty and integrity required of legal practitioners is incompatible with a twice convicted drug supplier remaining on the Supreme Court roll. There is force in the submission that, while the legal profession (and the community) may countenance one lapse or aberration linked to a legal practitioner’s mental health and drug dependency, the commission of a second set of serious criminal offences (while subject to an ICO) is not and should not be readily countenanced.

70. In all the circumstances, adopting the language of Parente at [26], [31]-[34] (per Basten and Meagher JJA), [50], [67]-[68] (per Brereton JA) (and similarly see Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [42] per Bell P (as his Honour then was) with whom White JA and Emmett AJA agreed); Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [10] per the Court (Basten and Macfarlan JJA, Simpson AJA writing separately), it would be inimical to the reputation of the profession, and to public confidence in the integrity of the profession and the administration of justice, for the respondent’s name to remain on the Supreme Court roll.

66. Accordingly, an order for the removal of the respondent’s name from the roll will be made. There is, of course, nothing to preclude the applicant from applying for readmission to the Supreme Court roll once his mental health recovery is more established and his rehabilitation can more confidently be demonstrated.

67. As to costs, while the respondent has acted responsibly to minimise costs by not contesting the application for the removal of his name from the Supreme Court roll, it remains the case that these proceedings were necessary (as the orders could not be made simply by consent of the parties) and the respondent is responsible for the consequences of his conduct that led to this application.

68. Therefore, the orders of the Court are:

1. Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers.

2. Order that the name of the respondent [redacted] be removed from the Roll of Australian Lawyers.

3. Order that the respondent pay the applicant’s costs of these proceedings.

Addendum

74. Since handing down judgment on 23 October 2024, the respondent has made submissions as to the need for a continued suppression order (pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW)) in respect of his name and details of his sentencing on the grounds in s 8(1)(a) and s 8(1)(c) of the said Act. The Prothonotary did not wish to be heard on that issue.

75. The Court has considered the submissions. For the sake of clarity, the existing suppression order made by the Registrar in this Court operated only until the first available hearing before a judge; and hence has now expired in accordance with its terms. That does not affect the existing suppression orders made by the District Court. As to the proceedings in this Court, the Court is not persuaded that a further suppression order issue is necessary on the ground set out in s 8(1)(a). However, we are persuaded that a suppression order should be made on the ground set out in s 8(1)(c) of the Act as necessary to protect the safety of the respondent.

76. Accordingly, we have made certain redactions to the reasons and orders made on 23 October 2024 and now make the following further order:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground set out in 8(1)(c) of the Act, order that the name of the respondent be suppressed and that the respondent be referred to by the pseudonym “X”, this order to apply throughout the Commonwealth of Australia for a period of 20 years (unless extended).

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Decision last updated: 31 October 2024