Legal Services Commissioner v Cullen
[2020] QCAT 439
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- Unreported Judgment
- Legal Services Commissioner v Cullen[2020] QCAT 439
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Legal Services Commissioner v Cullen[2020] QCAT 439
Legal Services Commissioner v Cullen[2020] QCAT 439
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Legal Services Commissioner v Cullen [2020] QCAT 439 |
PARTIES: | Legal Services Commissioner (applicant) v Corey Wayne Cullen (respondent) |
APPLICATION NO/S: | OCR104-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 30 October 2020 (ex tempore) |
HEARING DATE: | 30 October 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President Assisted by: Mr Peter Sheehy, Legal Panel Member Dr Margaret Steinberg AM, Lay Panel Member |
ORDERS: | Upon the undertaking given to the Tribunal by the respondent as recorded in Exhibit 1, there will be the following orders:
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – CRIMINAL OFFENCES – where the respondent was convicted on his own plea of guilty of the serious offence of possession of dangerous drugs – where the applicant has brought two charges against the respondent, being for the conviction of a serious offence and for engaging in conduct which was likely, to a material degree, to bring the profession into disrepute – where the respondent’s offending was an isolated instance of unintentional offending – where the parties jointly urge that there be a finding of unsatisfactory professional conduct on Charge 1 – where the applicant seeks a finding of professional misconduct on Charge 2 – whether the conduct is of such an egregious character such as to warrant a finding of professional misconduct PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the respondent has expressed genuine remorse and contrition – where the respondent has provided evidence of insight into his conduct and the steps he has taken to address certain mental health issues – where the respondent has proffered an undertaking to provide evidence of quarterly drug testing and ongoing mental health reviews when applying for renewal of his practising certificate for the next couple of years – whether the Tribunal should impose a public reprimand – whether any further sanctions are necessary or warranted, in light of the undertaking given by the respondent Drugs Misuse Act 1981 (Qld) s 9 Legal Profession Act 2007 (Qld) s 418, s 419, s 420, s 462, sch 2 Legal Services Commissioner v Bentley [2016] QCAT 185 Legal Services Commissioner v Brown [2018] QCAT 263 Legal Services Commissioner v Challen [2019] QCAT 273 Legal Services Commissioner v Greenhalgh [2020] QCAT 349 Legal Services Commissioner v Munt [2019] QCAT 160 Legal Services Commissioner v Nguyen [2015] QCAT 211 NSW Bar Association v Sahade (No 3) [2006] NSWADT 39 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Lester, legal officer for the Legal Services Commission |
Respondent: | A Edwards, instructed by Hannay Lawyers |
REASONS FOR DECISION
- [1]By this discipline application under the Legal Profession Act 2007 (Qld) (“LPA”) the applicant, the Legal Services Commissioner, has brought two charges against the respondent, Corey Wayne Cullen. The first charge is that on 27 November 2019 the respondent was convicted in the Magistrates Court of Queensland at Brisbane of a serious offence. The second charge is that on 30 August 2019 the respondent engaged in conduct which was likely, to a material degree, to bring the profession into disrepute, contrary to r 5.1.2 of the Australian Solicitors Conduct Rules 2012 (“ASCR”).
- [2]As it will appear, there was very little contest between the parties in relation to this discipline application. Indeed, in reality, the only issue remaining for the Tribunal to decide relates to the characterisation of the conduct under Charge 2. The applicant has filed affidavit material which provides evidence in support of the particulars of each of the charges. The respondent has filed an affidavit giving some explanation of the circumstances which led to the events which were the subject of the charges, and to also provide other personal information concerning his circumstances. A subsequent affidavit by the respondent’s solicitor has also been filed, exhibiting a copy of a report by the respondent’s psychologist. In any event, the parties have filed a Statement of Agreed Facts which sets out the agreed factual basis upon which the parties ask the Tribunal to proceed for today’s purposes. By reference to that Statement of Agreed Facts, the Tribunal can summarise the relevant background of this matter as follows.
- [3]The respondent was born on 22 February 1990. He was admitted to practise as a solicitor in Queensland on 2 February 2015. He has, since the time of his admission, been continuously engaged in legal practice, initially as an employed solicitor with several firms and then, since January 2018, as the principal of his own practices, run through the machinery of incorporated legal practices of which he is the legal practitioner director.
- [4]The charges arise out of an incident that occurred on 30 August 2019. On that day, the respondent attended at the Magistrates Court of Queensland at Brisbane in his role as a solicitor acting for a client. Following his appearance in Court, the respondent walked to the vicinity of the main exit of the building where protective services officers were employed. As he walked through that area, the respondent put his hand into his right trouser pocket to retrieve an object and a clip-seal bag fell from his pocket, landing on the ground. A protective services officer took possession of the bag, which was found to contain a gross weight of 1.46 grams. The substance in the bag tested positive for cocaine upon a presumptive test. On 23 September 2019, the respondent attended on the police where a record of interview was conducted. He made appropriate admissions to possession of cocaine.
- [5]On 27 November 2019, the respondent was convicted on his own plea of guilty in the Magistrates Court at Brisbane of the serious offence of possession of dangerous drugs, contrary to s 9(1) of the Drugs Misuse Act 1986 (Qld). At the time he was sentenced, the sentence proceeded on the factual basis that during a period of significant stress in his life, he had, one evening, been binge drinking and had used the drug. He had forgotten about the remainder of the drug in the clip-seal bag, which he left in the pocket of his suit trousers. When he next wore those trousers to work, the drugs fell out of his pocket in the circumstances described above. He was sentenced on 27 November 2019 by the learned Chief Magistrate on the basis that he had not intended to take drugs into the courthouse, but was reckless in the way he managed those drugs. No conviction was recorded, but the respondent was sentenced to perform 80 hours of unpaid community service. He completed all 80 hours of that community service in accordance with the terms and conditions imposed by the Chief Magistrate.
- [6]The Statement of Agreed Facts also records that the allegation of the respondent possessing drugs, him being charged, his Court appearances and the sentence were all reported in the media. The Statement of Agreed Facts concludes:
- By engaging in the conduct as outlined above, the respondent engaged in conduct which is likely to a material degree to bring the profession into disrepute contrary to rule 5.1.2 of the Australian Solicitors Conduct Rules 2012 by:
- (a)engaging in illegal conduct;
- (b)compromising his position as an officer of the court whose duty is not only to obey the law, as with all Queensland citizens, but also to uphold the law; and
- (c)being charged with, convicted of and sentenced to a period of unpaid community service for a serious offence.
- [7]Apart from the Statement of Agreed Facts, the Tribunal has had regard to all the evidence put before it. As will become apparent, there really is no contest in relation to the factual circumstances which give rise to the charges. The Tribunal has, however, noted the information put before it by the respondent concerning the significant mental anguish suffered by the respondent as a consequence of the untimely death of his brother in 2015, and the regrettable impact that his brother’s death had on the respondent’s capacity to cope with the stresses of life generally and engaging in practice, in particular.
- [8]The Tribunal also has the benefit of a report dated 13 October 2020 by Professor James Freeman, a consultant psychologist, who conducted a psychological assessment on 9 October 2020 for the purpose of examining any question of the respondent’s cocaine usage in relation to determining conditions for his practising certificate.
- [9]In his report, Professor Freeman remarks on the matter to which the Tribunal has already referred; namely, the respondent’s struggling with the sequelae of his brother’s death. In his conclusions, Professor Freeman noted:
There does not appear to be any evidence that [the respondent] has a recognised drug misuse or dependency problem, but rather, continues to maintain abstinence. More specifically, his psychosocial functioning (particularly his vocational capacity) has not been deleteriously affected by any type of drug misuse or associated dependency. Similarly, he reports intending to undergo urinalysis that confirms his abstinence from drug use. Future intermittent testing may prove to be further [sic] protective factor against relapse. However, [the respondent] reported that he has experienced a greater level of benefit from engaging in the psychological consultations, and thus, periodic reviews of his mental health may prove more salutary[.]
- [10]As already noted, there is really no contest in relation to the facts underpinning the charges. The first task for the Tribunal, therefore, is to make a determination of the characterisation of the conduct under each of the charges, and in particular whether, in respect of each charge, there should be a finding of professional misconduct or unsatisfactory professional conduct. In that regard the Tribunal, of course, is cognisant of the non-exhaustive definitions of those terms contained in ss 418 and 419 of the LPA. The Tribunal also notes that by s 420(1)(c), conduct for which there is a conviction for a serious offence (as that term is defined in the legislation)[1] is deemed to be conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.
- [11]In relation to the first charge, there is no doubt that the respondent was convicted of a serious offence; the question is whether there should be a finding now of professional misconduct or unsatisfactory professional conduct by virtue of that conviction. The parties jointly urge that it is appropriate in this case for there to be a finding of unsatisfactory professional conduct on that charge. The Tribunal agrees with that approach.
- [12]It is objectively the case that a conviction for a serious offence, such as possession of a dangerous drug, is by its nature a matter that the Tribunal will regard seriously; but it must equally be acknowledged that the mere fact that a person has been convicted of a serious offence does not compel a finding of professional misconduct. The nature of conduct under offences can vary enormously, and the mere fact of conviction does not automatically mean that the conduct itself is of such an egregious or substantially bad standard as to warrant characterisation as professional misconduct. Here, there was an isolated instance of what was undoubtedly unintentional offending at what was also, on any view of it, the lower end of the scale in terms of culpability for such offences. These are all matters to which the Tribunal should have regard when assessing the characterisation of the conduct. This approach is consistent with that adopted by the Tribunal in Legal Services Commissioner v Nguyen.[2]
- [13]As noted, the learned Chief Magistrate sentenced the respondent on the basis that the respondent had not intended to take drugs into the courthouse but was reckless in the way he managed the drugs. That recklessness is self-evident from the circumstances in which he came to have the drugs in the pocket of his trousers on the day in question. But those isolated circumstances do not, it seems to the Tribunal, amount to such serious conduct as to warrant a finding of professional misconduct. Accordingly, the Tribunal accedes to the joint submission that in respect of Charge 1, there should be a finding of unsatisfactory professional conduct.
- [14]In relation to Charge 2, the applicant urged the Tribunal to have regard to the fact that the charge is framed as a contravention by the respondent of the ASCR, and thereby the high standards of conduct which the profession itself and the public can rightfully expect of practitioners. It was submitted that regardless, or even if, it be accepted that the conduct was reckless, the mere fact that this was a case of a solicitor in possession of drugs amounted to a sufficiently serious departure from the standards of conduct expected of all legal practitioners as to warrant characterisation as professional misconduct.
- [15]It is true that, as the Tribunal has already noted, the commission of any drug offence by a legal practitioner is a matter which will be regarded seriously by the Tribunal. But again, there are proportionalities in respect of the approach which needs to be taken by the Tribunal, and regard always needs to be had to the particular circumstances of each case. For example, in the case of Legal Services Commissioner v Munt,[3] where the practitioner was convicted of the undoubtedly very serious offences of drug trafficking, there is no doubt that the nature of the conduct for which that practitioner was convicted was so serious as to represent a grave departure from the standards of conduct expected of all legal practitioners, and a finding of professional misconduct was inevitable in that case.
- [16]In the present case, however, the characterisation of the conduct for the purposes of Charge 2 also needs to be seen through the prism of the circumstances in which the conduct occurred. As has already been noted on several occasions, this was an unintentional possession. In saying that, the Tribunal reaffirms that it is not in any way countenancing the possession of dangerous drugs at any time by legal practitioners, but the circumstances in which the practitioner was found in possession of these drugs has been explained. It is not, for example, as if the practitioner was in possession of the drugs in the courthouse for the purposes of using the drugs himself or even worse, supplying the drugs to somebody else. Any circumstance like that would, of course, have painted an entirely different picture and the outcome would certainly have been quite different. Rather, this was an isolated incident of unintentional possession which was serious, but it does not seem to the Tribunal to be of such an egregious character as to warrant characterisation as professional misconduct. Accordingly, the Tribunal has reached the conclusion that on Charge 2 there will be a finding of unsatisfactory professional conduct.
- [17]Turning then to sanction, the Tribunal notes the expressions of remorse and contrition by the respondent. He has been significantly embarrassed by this incident, professionally and publicly, by virtue of the media attention that has been attracted. The Tribunal cannot, however, place a significant amount of weight on that factor, simply because that is what happens when you do stupid, illegal things. What is of more significant comfort to the Tribunal, for the purposes of setting an appropriate sanction, is the clear evidence of insight by the respondent into not only the fact that his offending conduct was patently wrong, but also the need for him to observe the highest standards which are expected of members of the profession. Allied with that are the positive steps that he has taken to address the mental health issues that he has encountered, and evidence of that can be seen from the various psychological reports which have been put before the Tribunal.
- [18]It is not contended that this is a case in which there ought be anything like a finding that the respondent lacks fitness or propriety for membership of the profession, and the applicant does not urge for any of the more severe orders which lie within the discretion of the Tribunal. It is, however, clearly appropriate for the respondent to be publicly reprimanded for having committed this offending conduct. As the Tribunal has noted before, the making of a public reprimand is, in itself, a serious matter which serves a protective interest.[4] In that regard, it needs to be recalled, of course, that the purpose for which the Tribunal makes orders in this jurisdiction is not punitive, but rather is protective of the interests of the public and the profession. The imposition of a public reprimand is not only a salutary warning to the respondent personally of the serious consequences which flow from engaging in conduct of this sort (because, as I have said in other cases,[5] it will stand as a permanent blemish on his professional record). The imposition of a public reprimand also serves the salutary purpose of general deterrence to members of the profession more broadly as to the serious consequences which flow from the commission of these sorts of offences,[6] and also assures the public that this Tribunal and responsible members of the profession generally take a very dim view of people who engage in this sort of conduct.
- [19]Beyond that, in terms of ongoing maintenance of good conduct by the respondent, the Tribunal was gratified to receive from the respondent, through his counsel and tendered as an exhibit, the offer of undertakings for the respondent to do two things for the next couple of years when applying for renewal of his practising certificate: that is, to provide evidence of him having undertaken quarterly drug testing, and also evidence of his ongoing mental health reviews. It will be recalled that those steps are consistent with the advice given by Professor Freeman in his recent report. Again, those steps are not to be effectively imposed on the respondent by way of punishment; rather, they are supportive of him in his ongoing development as a member of the profession, and more importantly are designed to be protective of the public, his fellow professionals and the Court in terms of their dealings with the respondent and his broader engagement in the profession. It is noted that the proffering of those undertakings, which the Tribunal is inclined to accept, obviates the necessity for the Tribunal to make orders which would have the effect of imposing conditions on the respondent’s practising certificates for the next couple of years.
- [20]Finally, it is noted that no case has been advanced as to there being exceptional circumstances which would warrant a departure from the otherwise mandatory terms of s 462 of the LPA, concerning the payment of the applicant’s costs.
- [21]Before pronouncing the orders, I will read into the record the terms of the undertaking by the respondent which are recorded in Exhibit 1:
At the time Mr Cullen applies for renewal of his practising certificate in 2021 and 2022, he undertakes to provide supporting documentary evidence that he has, as from 30 October 2020:
- (a)maintained ongoing counselling at least quarterly with a registered psychologist or psychiatrist; and
- (b)has provided urine samples clear of unlawful drugs on at least a quarterly basis through a pathology practice.
- [22]For all of these reasons and upon the undertaking given to the Tribunal by the respondent, there will be the following orders:
- On each of Charges 1 and 2, there is a finding that the respondent engaged in unsatisfactory professional conduct;
- The respondent is publicly reprimanded; and
- The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a matter before the Supreme Court of Queensland.
Footnotes
[1] See LPA sch 2 (definition of “serious offence”).
[2] [2015] QCAT 211.
[3] [2019] QCAT 160.
[4] See, eg, Legal Services Commissioner v Brown [2018] QCAT 263, [42] (“Brown”); Legal Services Commissioner v Challen [2019] QCAT 273, [39].
[5] See, eg, Brown, [42]; Legal Services Commissioner v Greenhalgh [2020] QCAT 349, [28].
[6] See Legal Services Commissioner v Bentley [2016] QCAT 185, [48]–[49]; NSW Bar Association v Sahade (No 3) [2006] NSWADT 39, [128].