Legal Services Commissioner v XLP
[2024] QCAT 151
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Legal Services Commissioner v XLP[2024] QCAT 151
- Add to List
Legal Services Commissioner v XLP[2024] QCAT 151
Legal Services Commissioner v XLP[2024] QCAT 151
[2024] QCAT 151
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JUSTICE MELLIFONT
Assisted by:
MS JULIE CORK
MS PATRICIA SCHMIDT
No OCR 155 of 2023
LEGAL SERVICES COMMISSIONER Applicant
v
XLP Respondent
BRISBANE
5 MARCH 2024
REASONS FOR DECISION
- [1]MELLIFONT J: This matter comes before the tribunal as a referral from the Legal Services Commissioner in respect of disciplinary conduct alleged against XLP arising out of his commission of a number of criminal offences for which he was sentenced some time ago.
- [2]XLP was admitted to practice in the State of Queensland on 1 June 2015. At all material times, he was an Australian lawyer as defined by section 5(1) of the Legal Profession Act 2007 (Qld) (‘LPA’). He held an unrestricted employee practicing certificate from 10 April 2019 to 24 January 2021. To his credit, he voluntarily surrendered his practicing certificate to the Queensland Society Law Society for cancellation on 24 January 2021.
- [3]There are four disciplinary charges before the tribunal. The first charge relates to engaging in conduct for which there are convictions of serious offences. On 12 August 2020, the respondent was involved in a vehicle crash in Brisbane resulting in the Queensland Police Service being called to the scene. The QPS arranged for XLP’s vehicle to be towed to a police holding yard for further examination, and the respondent was transported to hospital for assessment and for taking of blood.
- [4]Police seized his backpack and wallet which were present at the scene of the vehicle crash. Items located within that backpack included two boxes of Tramal containing 32 tablets; one box of Lyrica containing 49 tablets; numerous Australia Post prepaid satchels with receipt of purchase in the sum of $810.75 paid in cash on 12 August 2020; and Australian currency in the sum of $10,535 bundled together by rubber bands.
- [5]On 13 August 2020, the QPS executed a warrant on the respondent’s residence and located a black suitcase containing approximately 5,950 tablets of prescription drugs comprising Diazepam, Tramal, Panadeine Forte, Lorazepam and Temazepam; a used glass pipe; and a folder of paperwork containing a handwritten inventory list of prescription medications.
- [6]On 13 August 2020, he was charged with one count pursuant to section 6(1), of the Drugs Misuse Act 1986 (Qld) of supplying dangerous drugs on 12 August 2020; one count pursuant to section 10A(1)(d), of the Drugs Misuse Act of possession of property suspecting of being the proceeds of an offence under the Drugs Misuse Act on 12 August 2020; and four counts pursuant to section 9(1), Drugs Misuse Act of possessing dangerous drugs on 13 August 2020. In respect of the supply count and the possession of property count, the respondent was sentenced to three months imprisonment, suspended forthwith for an operational period of two years.
- [7]He was also charged with one count pursuant to section 94 of the Health (Drugs and Poisons) Regulation 1996 (Qld) (‘HDP Regulation’) of unlawful possession of controlled drugs on 13 August 2020; one count pursuant to section 10A(2)(b), of the Drugs Misuse Act of possession of utensils or pipes that had been used on 13 August 2020; and one count pursuant to section 204 of the HDP Regulation of unlawful possession of restricted drugs on 13 August 2020.
- [8]He pleaded guilty to all offences in February 2021. In respect of section 9(1), Drugs Misuse Act possession count, he was sentenced to three years probation. According to the verdict and judgment record which appears at page 44 of the hearing bundle, no conviction was recorded. Special conditions of probation were imposed, including that he was to continue to attend upon his psychiatrist; that he was to attend upon a clinical psychologist to be treated for trauma symptoms; that he attend a drug and rehabilitation service as directed, including residential rehabilitation; and that he submitted to random urine analyses and that all results must be negative.
- [9]In respect of the last three offences, that is, the offence under section 94 of the HDP Regulation and the offence under section 10A(2)(b), of the Drugs Misuse Act, and the offence under section 204 of the HDP Regulation, he was convicted and not further punished, and no conviction was recorded. At sentence, a forfeiture order was made in respect of the drugs, cash and property.
- [10]Charge 2 of the disciplinary charges before the tribunal involves engaging in conduct for which there are convictions of serious offences and offences involving dishonesty. From on or around 7 January 2019 to 30 October 2020, the respondent was employed by a government statutory body. During the course of his employment there, he produced two medical certificates dated 5 May 2020 and 8 April 2020 purportedly signed by a particular doctor of a suburban medical centre, five medical certificates dated 24 June 2020, 2 July 2020, 20 July 2020, 22 July 2020 and 27 July 2020 purportedly signed by a different doctor of a different suburban medical clinic, and medical certificate dated 17 July 2020 purportedly issued by a Brisbane hospital.
- [11]These false certificates resulted in the respondent obtaining a total of 12 and a half days of sick leave, albeit without pay, from his employer. As was explained in the material the respondent had used up all of his sick leave and this was an attempt, it seems, for his employment to continue, misguided as it was. If it is not clear from what I have just said, the medical certificates were fraudulent certificates created by the respondent.
- [12]On 8 January 2021, he was charged with eight counts of contravening section 430(c) of the Criminal Code 1999 for giving a certificate or information that is false in the material particular with intent to defraud between the period of 8 April 2020 and 27 July 2020. He pleaded guilty to those charges at the same time as the drug charges I have already referred to and was ordered to perform three years probation. This probation order was concurrent with the probation order I have already mentioned and on the same conditions.
- [13]The third disciplinary charge before the tribunal is a failure to give notice of charge of a serious offence. Pursuant to section 57(1)(b) of the LPA the respondent was required to give notice to the QLS that he was charged with serious offences on 13 August 2020. Pursuant to section 57(2)(b) the LPA he was required to give notice that he was charged with a serious offence by 20 August 2020. These dates, obviously, refer to the different sets of charges. He failed to give notice to the QLS by 20 August 2020 that he was charged on 13 August 2020 with serious offences.
- [14]The fourth and final disciplinary charge before the tribunal is, again, the failure to give notice of a charge of a serious offence. This relates to the serious offences that he was charged with on 8 January 2021. He was required to give notice by 15 January 2021. He failed to do that.
- [15]There is a significant body of material before the tribunal which makes it plain that the respondent has had more than his fair share of struggles with mental health issues. The agreed facts contains a brief summary, but I will turn to some additional detail in the course of these reasons. He has been diagnosed with a primary condition of permanent post-traumatic stress disorder with secondary conditions of major depressive disorder, substance abuse disorder and symptomatic agoraphobia, hypervigilance and distractibility. He developed these conditions and symptoms following his exposure to material relating to child sex offenders while working as a prosecutor.
- [16]He has been and is being treated by various medical healthcare practitioners who assist in the treatment of his mental health conditions, including the prescription of antidepressants, antipsychotic and anti-anxiety medications. He has, since August 2017, been the subject of involuntary assessment and treatment under the Mental Health Act 2016 and has been admitted to the emergency department several times due to substance overdoses. He has a history of recurrent substance abuse, including the use of opioids and alcohol resulting in numerous overdoses requiring emergency department treatment. It is the position of both parties that due to his health and mental health, he is unable to obtain or maintain employment. To his credit, he continues to work on his mental health. He continues to see a psychiatrist with whom he has had a therapeutic relationship for some years now and works with a team of general practitioners.
- [17]The offences, which are the subject of the referral to the tribunal, are not the first offences committed by the respondent. He was before the Brisbane Magistrates Court in March 2018 in respect of a number of possession of dangerous drug offences. However, I observe that no conviction was recorded and he was not further punished in respect of those offences. I also observe that that information was disclosed to the Queensland Law Society.
- [18]On 7 April 2021, the Legal Services Commission wrote to the respondent setting out the investigation details. XLP’s response to that dated 30 April 2021 discloses a very early acknowledgement of his wrongdoing and acceptance of the seriousness of the charges. In that respect I will read that letter into the record. He wrote:
“…With respect to the conduct to which I plead guilty, I accept the objective seriousness of all the charges. Subjectively, the conduct occurred in a situation of highly problematic mental health and co-existing substance use issues.
I have attached the report of a forensic psychologist. This report provides an overview of my mental health and co-morbid substance use issues leading up and during the relevant offending period. I have also attached a letter of my treating psychiatrist. During the offending period I had symptomatic relapse of my post-traumatic stress disorder and a reemergence of my issues with substance misuse. I am deeply remorseful for my conduct and am proactively attending psychological and psychiatric consultations in an effort to deal with my complex issues.
With respect to the fraudulent use of medical certificates, there was no financial gain nor was my intention such. I merely was in a position of being unable to cope with the requirements of my employment and I foolishly used these certificates to gain some breathing space.
With respect to the drug offences there was a substantial quantity of products for personal use. There was also the supply and proceeds offences which simply was undertaken due to debts acquired from dependency and to fund personal use to non-constructively deal with my extremely problematic mental health state.
I accept that my notification to the Law Society of the charges occurred well beyond the legislated period required for disclosure. I wish to make no excuses for this except to state that my mental health being what it was, I was not thinking clearly or rationally about the disclosure requirements nor was I thinking clearly or rationally in my general conduct.
Due to my conduct I am not seeking to currently practice law. I am unemployed, have commenced studying in a different field, and am attempting with medical support to deal with my mental health and the substance use issues.”
- [19]In proceeding in this matter, the Tribunal proceeds on the basis that XLP has demonstrated genuine remorse at an early stage, cooperation with law enforcement authorities in the criminal process and cooperation with the Legal Services Commission in these proceedings, in fact, to the point where there was a request for this matter to be dealt with on the papers and, had the Tribunal been able to operationalise that at that juncture, it may have been able to proceed in that fashion. Although, I note, given the nature of the strike out, the Tribunal might hesitate to deal with a matter on the papers in those circumstances.
- [20]There is a significant body of psychological and psychiatric material before the Tribunal. I do not propose to traverse it in significant detail given that the summary in the statement of facts encapsulates the essence of it, but it is quite clear that XLP’s continued and repeated exposure to child exploitation material has had profound and lasting impacts on him. Before the learned Magistrate, his representatives submitted that he pleaded guilty early and that he had taken active steps towards his rehabilitation. His representative observed that he had started a Bachelor of Arts and Bachelor of Business degree, and that he finished his Bachelor of Arts with distinction and then proceeded to obtain his Law Degree with Honours.
- [21]The submissions note the antecedents of the respondent and that prior to the offences his antecedents were such that he was an exemplary member of the society, and he was prosecuting on behalf of an important prosecutorial agency. He had in fact been promoted from the position of paralegal to prosecutor and served the community in that role as prosecutor. It was submitted on his behalf, and it is accepted in this Tribunal that the medical material very plainly demonstrates that it was that exposure to that content that led to post-traumatic stress disorder diagnosis as well as major depressive disorder and then the subsequent diagnosis of benzodiazepine dependence.
- [22]In sentencing XLP, the learned magistrate observed:
“The charges now before the Court are more serious by reason in terms of the drugs matters –“
- [23]And I interpolate that “more serious” is a comparison to the 2018 offences. I will continue with the quote –
“…because of the repeated nature of the offending and, in particular, whilst the supply does not involve Schedule 1 drugs, it does involve a significant amount of prescription drugs. It cannot be said that they were for your personal use, given the other charges in relation to the phones and the $10,500 in your possession as a result, so they are serious offences. The fraudulent certification is also serious. I accept that you did not receive any paid leave, but you did receive a benefit by way of 12.5 days without pay. I accept that it was in order that you could keep your job, having left the [prosecutions office].
There is certainly sufficient medical information before this Court to satisfy me that you do suffer from post-traumatic stress disorder, major depressive disorder, and drug dependence that is directly related to your work as a prosecutor…and it is no surprise, really, that there is a direct link between that work and your diagnosis. You have made a number of attempts both voluntary and involuntary – I see that you have made both voluntary and involuntary hospital admissions.”
- [24]Her Honour observed:
“You have already lost a great deal. Even though you, yourself, surrendered your practising certificate you have lost that career certainly for the time being. You have lost your marriage…and you have the support of your father. You have been clear now of drugs according to the tests that have been provided to the Court and they do indicate that this is the case and I take that into account.”
- [25]I turn now to a characterisation of the conduct. Both the commissioner and the respondent submit that charges 1 and 2 should be characterised as professional misconduct and charges 3 and 4 of the discipline application should be characterised as unsatisfactory professional conduct. The Tribunal agrees. I should nonetheless place reasons on the record as to why this is so.
- [26]Pursuant to section 456(1) of the Act if the Tribunal is satisfied that the respondent has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any orders as it thinks fit.
- [27]Unsatisfactory professional conduct is defined in section 418 of the Act and includes:
“conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”
- [28]Section 419 of the Act defines “professional misconduct” as including:
“…unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”
- [29]For a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice, regard may be had to the suitability matters, and they are described in section 9(1), of the Act.
- [30]Section 420(1)(c), of the LPA provides that conduct for which there is a conviction of a serious offence or an offence involving dishonesty is conduct capable of constituting unsatisfactory professional conduct or professional misconduct, and serious offence is defined in the act to mean an offence, whether committed in or outside of this jurisdiction that is an indictable offence against a law of the Commonwealth or any jurisdiction, whether or not the offence is or may be dealt with summarily.
- [31]The drug offences which make up charge 1 are serious offences. The dishonesty offences which make up charge 2 are both serious offences and offences involving dishonesty. As to the question of whether conduct constitutes professional misconduct, I refer to the decision of Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, where Justice Thomas stated in respect of the test for professional misconduct that:
“The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”
- [32]It is quite clear that the drug offences which make up charge 1 and the dishonesty offences which make up charge 2 both fall within that characterisation. In respect of charge 1, the offences involved an element of commerciality indicated both by the amount of pills found and the amount of cash located in his backpack. The offending occurred while the respondent was employed as a lawyer, and the most serious offences, which is the supply and the possession of proceeds, attracted a sentence of imprisonment, albeit immediately suspended.
- [33]In respect of charge 2 before the tribunal, the conduct involves falsification of eight medical certificates. Honesty is, of course, an essential and fundamental trait for legal practitioners: Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 at paragraph [23]. In the decision of Barristers’ Board v Darveniza [2000] QCA 253, Justice of Appeal Thomas, with whom President McMurdo and Justice of Appeal White agreed, at paragraph [33]:
“Generally speaking, the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practises.”
- [34]In the decision of Legal Services Commissioner v Perrin [2019] QCAT 188, the then President Justice Daubney stated at paragraph [12]:
“Honesty is an essential and fundamental trait for legal practitioners. Whilst it is no part of this Tribunal’s function to punish the Respondent again for having committed these serious offences, it is necessary to note that the nature of the offences are such as to impugn his character. The public should be protected from practitioners who have demonstrated such a personal propensity for dishonesty. Such a person is not one in whom the public, other members of the profession, or the bench can safely repose trust and confidence.”
- [35]Although it is acknowledged that the conduct did not result in an actual financial benefit in terms of dollars, it did involve a benefit of sorts and was fundamentally dishonest, although frankly acknowledged by the respondent himself very early in the proceedings, it was misguided and occurred during a period where he was certainly not thinking rationally. In respect of charges 3 and 4, these are appropriately characterised as unsatisfactory professional conduct. I observe that the respondent did ultimately disclose the fact of his criminal charges, although it was late.
- [36]The sanctions submitted for is that the tribunal make an order pursuant to section 456(2)(a), of the LPA recommending that the name of the respondent be removed from the local roll. That proposition is not cavilled with by the respondent, and that is an appropriate concession. It is well-established that the purpose of making an order pursuant to section 456 of the LPA is not to punish the respondent, but to protect the public.
- [37]Where an order recommending the name of the respondent be removed from the local roll is being considered, there are two primary considerations. The first is whether the respondent is a fit and proper person at the time of the hearing and whether the probability is that the practitioner is permanently unfit to practise. It is clear from the material before me that these considerations are both relevant and both met in the sense that it is appropriate for a recommendation to be made for the respondent’s name to be struck off the roll.
- [38]In so doing, I have had regard to matters in his favour, including that the repeated exposure to child exploitation material, which occurred in his work a prosecutor, has had such a profound effect on him. The work that he was doing at that stage is important work for our community, and the prosecution of such offences helps to detect and deter and imprison disgraceful and disgusting predatorial behaviour. It is indeed a great shame that that work has had such dramatic consequences for the respondent, and the Tribunal commends him for his continued efforts in respect of his mental health, and efforts at rehabilitation and treatment.
- [39]He has most certainly cooperated both here and in the Magistrates Court. He voluntarily returned his practising certificate to the Queensland Law Society. There was also a significant delay in the commencement of disciplinary proceedings, given that he was sentenced in February 2021, and these proceedings were filed on 6 June 2023.
- [40]In all the circumstances, the tribunal makes the following orders:
- The tribunal finds that the conduct the subject and of charge 1 and 2 of the disciplinary application filed 19 June 2023 is proved and amounts to professional misconduct.
- The tribunal is satisfied that, the conduct subject to charge 3 and charge 4 of the Disciplinary Application filed 19 June 2023 is proved and amounts to unsatisfactory professional conduct.
- Pursuant to section 456(2)(a) of the Legal Profession Act 2007 it is recommended that the respondent’s name be removed from the local roll.
- Pursuant to s 656D(1) of the Legal Profession Act 2007 publication of:
- the contents of a document or thing filed in or produced to the tribunal;
- evidence given before the tribunal; and
- any order made or reasons given by the tribunal,
is prohibited to the extent that it could identify or lead to the identification of the respondent, XLP, save as is necessary for the parties to engage in and finalise this proceeding.
- The respondent is to pay the applicants costs of and incidental to the Disciplinary Application filed 19 June 2023. The amount shall be as agreed between the Legal Services Commission and the respondent and if not agreed, to be assessed on the standard basis as if the matter were in the Supreme Court of Queensland.