Legal Services Commissioner v PLP

Legal Services Commissioner v PLP - [2014] VCAT 793 - VCAT 2014 case summary — Zoe

[9]

practised under the name [name of legal practice].[1] 3. At all relevant times, Ms GLS[2] (the Complainant) was a female law graduate, who was undertaking practical legal training with the Respondent at [name of legal practice], as part of her studies for a Graduate Diploma of Legal Practice with an Australian university. 4. The Complainant brought proceedings for sexual harassment against the Respondent in the Tribunal in 2011 pursuant to the Equal Opportunity Act 1995 in the Human Rights Division of VCAT[3] 5. On 13 March 2013, the President of VCAT Justice Garde, found that: 1. Ms GLS was an employee of the Respondent; and 2. the Respondent had engaged in 11 occasions of sexual harassment of Ms GLS in contravention of sections 86(1)(b) and/or 87(1) of the Equal Opportunity Act 1995, and that the Respondent propositioned Ms GLS for sexual intercourse no fewer than 78 times during one of those occasions, which took place on 4 July 2011. 6. The Tribunal's Decision is recorded in GLS v PLP (Human Rights) [2013] VCAT 221. 7. Each of those contraventions occurred in the context of a professional relationship in which Ms GLS, as a graduate student, was undertaking practical legal training with the Respondent as part of her studies for a Graduate Diploma of Legal Practice. In fact, 10 of the 11 contraventions occurred at the Respondent's office. Justice Garde found that the Respondent was in a position of authority and control in relation to Ms GLS. 8. On one occasion, without Ms GLS' knowledge or consent, the Respondent set up two cameras in his office and filmed and recorded onto a hard drive, his sexual harassment of her. 9. The Respondent had also filmed and recorded his female conveyancing clerk in the office without her knowledge or consent. 10. Further, Garde J held that the Respondent's conduct had caused such severe distress and hurt to Ms GLS that an award of compensation of $100,000 was warranted. 11. On about 22 March 2013, the Commissioner undertook an investigation pursuant to section 4.4.8 of the Act.[4] 12. By letter dated 21 May 2013, the Respondent wrote to the Commissioner advising, amongst other things, that: 1. he 'accept[s] the decision of Garde J in relation to the conduct in which he found [the Respondent] engaged" and that he 'deeply regret[s] [his] conduct and recognise[s] that it was grossly inappropriate'; and 2. his filming and recording of Ms GLS were in part for his own sexual gratification. 13. By letter dated 16 July 2013, [the Commissioner] afforded the Respondent a final opportunity to make further comments before [the Commissioner] made a decision in relation to the complaint.[5] 14. By letter dated 20 August 2013, the Respondent responded ...in effect conceding the substance of all of the matters [the Commissioner] had raised.[6] 15. Following an investigation, the Commissioner became satisfied that there is a reasonable likelihood that VCAT will find the Respondent guilty of professional misconduct.
Pursuant to section 4.4.13(2) of the Act, the Commissioner made an application to VCAT for determination of the following charges and consequential orders.

[29]

Mr PLP denies this incident and says that it is a fabrication.
The conduct of Mr PLP alleged by Ms GLS is entirely consistent with his conduct on the evening of 4 July 2011 where he propositioned Ms GLS for sexual intercourse at least 78 times. The language and manner of propositioning repeatedly shown in the video of 4 July 2011 is very similar to that alleged by Ms GLS on this occasion.
I accept Ms GLS's evidence as to the third and fourth incidents and reject Mr PLP's denial and claim of fabrication. I accept Ms GLS's evidence that she was upset, demeaned and humiliated. I accept that each incident was unwelcome to her. I accept that a reasonable person would have anticipated that she would be offended or humiliated.
I find that:
- the third and fourth incidents occurred as deposed to by Ms GLS;
- the third and fourth incidents occurred in Mr PLP's office during the placement when Ms GLS was an employee of Mr PLP;
- the third incident constituted unwelcome conduct of a sexual nature by Mr PLP in relation to Ms GLS;
- the fourth incident constituted an unwelcome request for sexual favours, and unwelcome conduct of a sexual nature by Mr PLP in relation to Ms GLS.
- Ms GLS did not solicit or invite the conduct by Mr PLP in either the third or fourth incidents;
- Ms GLS regarded Mr PLP's conduct as unwelcome, undesirable and offensive as to both incidents; and
- a reasonable person having regard to all the circumstances would have anticipated that Ms GLS would be offended or humiliated as to both incidents.
The Fifth incident related to 'ogling Ms GLS's breasts' accompanied by sexual comments';[14] the Sixth incident related to 'persistent sexual advances';[15] and the Seventh incident related to 'unwelcome massage accompanied by reference to sexual matters: locked door'.[16]
1. As to the fifth incident, Ms GLS says that in or around the end of June 2011, Ms GLS placed lunch prepared by Mr PLP's partner for the two of them on the table. Mr PLP sat opposite her. He kept looking down her top, saying:

[47]

Both Mr PLP and [his Partner] initially denied that any photo of Mr PLP naked existed, or was sent to Ms GLS. They changed their position during the hearing when the photo and Ms GLS's mobile phone were produced showing that the photo had been sent from Mr PLP's partner's mobile phone to Ms GLS's mobile phone.
In cross-examination, Mr PLP now admitted that there was a photograph of him naked taken by his partner, but professed to be unaware that Ms GLS had the photograph.
For her part, Mr PLP's partner at first denied that she had ever sent Ms GLS a photograph of Mr PLP naked. She also initially denied that she had ever in her time taken a photograph of him naked. However, in cross-examination, she admitted that she must have taken the photo when he was sunburnt or tanned ages ago. She admitted that the photo was taken in their bedroom. She conceded that the photograph was taken in 2011.
Ms GLS's mobile phone shows that the photograph was sent to her on Monday 27 June 2011 at 1:06am.
I accept Ms GLS's evidence as to the ninth incident, and reject Mr PLP's and his partner's various explanations and denials. I find that Mr PLP's partner took the photograph of Mr PLP in their common bedroom, and that she sent the photograph to Ms GLS at Mr PLP's request. I accept that he told Ms GLS on the phone that he would get his partner to send Ms GLS a really good picture of him.
I also accept that Mr PLP's partner would not have sent Ms GLS or anyone else a photograph of Mr PLP naked without his express permission and direction. Had she done so without his permission, she would have been concerned that he would be upset and angry, and that she might imperil her relationship with him.
The conduct by Mr PLP was not solicited by Ms GLS and it was unwelcome to her. She was offended by, and did not want a photograph of Mr PLP naked. A reasonable person would have anticipated that she would be offended or humiliated by the receipt of a photograph of her employer naked with genitals clearly on display.
I find that:
- the ninth incident occurred as deposed by Ms GLS;
- the ninth incident occurred at a time when Ms GLS was an employee of Mr PLP;
- the ninth incident did not occur at Mr PLP's office;
- the ninth incident constituted unwelcome conduct of a sexual nature by Mr PLP acting through his partner who acted on his instruction and request in sending the photograph to Ms GLS;
- Ms GLS did not solicit or invite the sending of the photograph to her;
- Ms GLS regarded Mr PLP's conduct in sending her a photograph of himself naked as unwelcome, undesirable, offensive and humiliating;
- a reasonable person having regard to all the circumstances would have anticipated that Ms GLS would be offended and humiliated by Mr PLP's conduct.
The Twelfth incident occurred on or about 4 July 2011 and related to persistent sexual advances and reference to fantasising.[18]
1. In the late afternoon of 4 July 2011, Mr PLP set up two cameras in his office on a bookshelf facing the conference table in his office. He used small self-contained rechargeable cameras taking digital footage, and an internal hard drive later downloaded onto his computer. The existence of these cameras and associated recording devices was concealed from Ms GLS who arrived at around 5:45pm for a pre-arranged meeting with Mr PLP. Three video and sound recordings were tendered in evidence. Camera 1 recorded the video which I will describe as Video 1. Camera 2 recorded the videos which I will describe as videos 2 and 3. Counsel for Mr PLP in final submissions described the meeting between Ms GLS and Mr PLP as about an hour long. I agree with this estimate.
2. The videos and sound recordings have high evidentiary value in these proceedings. Transcripts have been prepared of the sound recordings. The videos clearly record what took place on the evening of 4 July 2011. As counsel for Mr PLP put it, the videos speak for themselves. Videos 2 and 3 capture the actions and conversations of Mr PLP and Ms GLS principally relevant to this incident.
3. There is no doubt that there were on the evening of 4 July 2011 repeated requests by Mr PLP for sexual intercourse with Ms GLS amounting in all, as Mr PLP agreed in cross-examination, to 78 occasions. Each request was refused by Ms GLS. As Ms GLS said during her cross-examination, Mr PLP was seeking to push her to have sex with him.
4. It is common ground between the parties that sexual intercourse between Mr PLP and Ms GLS did not take place. It is also common ground that Mr PLP and Ms GLS have never had sexual intercourse on any occasion. I accept Ms GLS's evidence that she has never been willing to have sexual intercourse with Mr PLP.
5. The sound recordings made by Mr PLP on the evening of 4 July 2011 are of considerable evidentiary value because they record the state of knowledge and common understanding of Mr PLP and Ms GLS about preceding events. They were made prior to Mr PLP's dismissal of Ms GLS on 12 July 2011, and are free of reconstruction and failure of recollection. They also precede the complaints subsequently made by the parties to regulatory bodies. The transcript records the rejection by Ms GLS of repeated requests by Mr PLP for sexual intercourse, the repeated references by Ms GLS to her friendship with Mr PLP's partner and her unwillingness to have sexual intercourse with Mr PLP.

[70]

The Respondent relies on a report from Dr List dated 10 April 2014. Mr List also gave oral evidence.
The Respondent was referred to Dr List in relation to this proceeding in April 2013. Dr List continued to treat the Respondent for a total of 31 sessions up until the time of writing his report. Dr List identified the following treatment goals in his report:[21]
- (a) Assisting [the Respondent] to comprehend the VCAT findings in relation to understanding the conduct in which he had engaged;
- (b) Physiological support and psychotherapy in relation to the stresses associated with that matter and the (then) investigation by the Legal Services Commissioner;
- (c) Assessing him with the possibility of providing expert evidence should the Commissioner's investigation proceed to hearing;
- (d) Supporting the relationship with his de facto Partner; and
- (e) Preventing a recurrence of events similar to those for which he was found culpable.
In his report, Dr List recounts the Respondent's troubled life as a child and adult. The Respondent gave a history of emotional and physical abuse from his step father. He was bullied at school, molested repeatedly when employed as a butcher at the age of 18 and taken advantage of by people that he trusted.
His mother was described as being critical and cold towards him. She still hits him. When he began his private practice in 2002, the Respondent hired his mother in an administrative capacity. After entering into a relationship with his current partner in 2004, he continued to live at his mother's house for a further eight years until the Respondent purchased his own home outright in 2011. This was the time when the Complainant began working her placement at the practice. For the past 11 years, the Respondent has worked 60 hours per week.
Dr List noted that, prior to his assessment, the Respondent reported numerous symptoms consistent with the diagnosis of high functioning autism, including:[22]
- (a) I can't take jokes - I'm not sure what's funny;
- (b) I can't read cues, like [Ms GLS's], it's confusing, she seemed in control;
- (c) I feel lost when things are not in order;
- (d) All through my life I've said things and didn't understand how they would be perceived; and
- (e) I need structure in my day, my life, like the whole day has to be planned or things get lost.
In Dr List's opinion, the Respondent suffered three distinct problems during his childhood: [23]
1. A lack of adequate attachment from his mother, consistent with her presentation in my rooms, in which the yearning to be 'adored' has acted as a constant theme in his life...;
2. The developmental disorder known as high functioning autism, or Asperger's Disorder, substantially impacting his capacity to relate successfully to others;
3. Severe and prolonged physical and emotional abuse at the hands of his stepfather, compounded by the lack of protective response by his mother. In this regard, he appears to suffer at least some of the elements of PTSD [Post-Traumatic Stress Disorder].
Notwithstanding this background, Dr List acknowledged that the Respondent had successfully completed his training in law as a mature student; established a successful law practice; and was in a committed de facto relationship.
Not being a specialist in the area of Asperger's or Autism Spectrum Disorder, Dr List referred the Respondent to Ms Pamela Langford for further assessment. I will return to Dr List's evidence shortly.

[80]

The reliability of Dr List's diagnosis of Asperger's Disorder is also seriously brought into question by reason that Dr List had been treating the Respondent from April 2013, and it was not until the Respondent himself expressly reported that he had the symptoms of the Disorder in March 2014, that he decided to refer the Respondent for an assessment by Ms Langford.
In cross examination, Dr List described how the Respondent discovered a book in the waiting room titled 'All Cats Have Asperger's Syndrome' and tearfully declared 'that's me'. Dr List conceded that he had no expertise in diagnosing Asperger's Disorder.
In relation to his reference to Post Traumatic Stress Disorder, Dr List provides no analysis as to how he reached this diagnosis or whether in fact he was making a clinical diagnosis or merely observing certain characteristic features.
Dr List acknowledged that his role was not to investigate and find the facts and that he was not capable, as a clinician, of reconciling contrary evidence which had been presented to him. Dr List further conceded, with significant reluctance, that he could not discount that the Respondent had been lying to him; and that not all episodes of anti-social behaviour are related to a mental disorder.
In relation to the descriptions of the Respondent as ...'Eccentric, vulnerable, naïve and preoccupied with subjects of personal interest'...Dr List conceded that he had relied upon these descriptions contained in Ms Langford's report.
In my view, Dr List was inclined to be argumentative and present more as an advocate for the Respondent rather than an independent expert. He purported to rely upon a finding of another expert while admitting that he had no expertise in the area of autism spectrum disorder. He also made causal connections between the Respondent's misconduct and the psychological features which he identified, without properly acknowledging the serious deficiencies, errors and omissions in the history which he had been given. He was also reluctant to address the Respondent's capacity to misrepresent the Complainant, particularly in relation to allegations of sexual provocation and threatening behaviour.
Finally, Dr List conceded that, even accepting the diagnosis of Asperger's syndrome, it has only been made very recently and there has been insufficient time to deal with the strategies and techniques for managing this disorder. He also conceded that there are a number of unresolved issues, particularly in relation to the Respondent's view about the Complainant.
Ms Langford, unlike Dr List, is experienced in the field of diagnosing Asperger's Disorder. After conducting relevant tests, she concluded that the Respondent was in the 'borderline to probable' range, on the spectrum. Ms Langford conceded that she did not make a strong diagnosis but rather a mild form of Asperger's, which was dependent upon the history given. She did not interview either of the Respondent's mother or partner.
In my view, the evidence relied upon by Ms Langford and her subsequent report suffers from the same underlying failing as the history provided to Dr List, that is, that the diagnosis was dependent on the veracity of the Respondent's account to her. Again, the evidence clearly shows that the Respondent has not given Ms Langford an accurate account of what took place between himself and the Complainant.
The background provided in Ms Langford's report is also revealing as to the Respondent's current state of mind and apparent lack of insight into the nature and gravity of his misconduct. In part, the report reads as follows:

[82]

In my view, the background provided in Ms Langford's report represents a self-serving account of events by the Respondent. In particular, the Respondent portrays himself as the victim of the Complainant's manipulation and predation. He minimises his own culpability by painting a picture of confusion and naivety. He also paints himself as socially isolated and virtually incapable of maintaining any close personal relationships.
Ms Langford also makes the following findings:
- (a) That the Respondent is unable to dissemble;[40]
- (b) He has been described by others as eccentric, likeable, vulnerable and preoccupied with subjects of personal interest;[41] and
- (c) The Respondent has often appeared vulnerable and naïve to others.[42]
There are no factual bases for any of those conclusions apart from the Respondent telling Ms Langford such things. The findings made by Garde J emphatically put a lie to the claim that the Respondent is unable to dissemble.
Likewise, none of the 13 written references relied upon by the Respondent contain any suggestion that the Respondent exhibited any of the other characteristics relied upon. In particular, none of the referees describe the Respondent in terms of being eccentric, vulnerable, naïve, socially isolated or inclined to be a loner. There is also no suggestion that he has any difficulty communicating or being coherent. I will return to the references shortly.
Ms Langford conceded in cross-examination that the picture of the Respondent painted by the testimonials was inconsistent with the Respondent having any Asperger's Disorder (or symptoms) and she acknowledged that the Respondent had a motivation in seeking a particular diagnosis for this proceeding. She also accepted that Garde J's finding that the Respondent had dissembled in the witness-box, contradicted such a diagnosis.
Critically, Ms Langford does not say that the Respondent's behaviour toward Ms GLS was causally connected to any Asperger's Disorder (or symptoms). She could only say that it may have contributed. In regard to the Respondent's total lack of credibility in the witness box before Garde J, Ms Langford accepted that usually it is a symptom of Asperger's that a person 'is not very good at lying'.
Counsel for the Respondent confirmed that Ms Langford was not asked to view the video of the 'Twelfth Incident' nor was she asked to give an opinion on whether the conduct giving rise to this case were caused by symptoms associated with Asperger's.
I found Ms Langford to be unwilling to make basic concessions during cross-examination. The following passage is illustrative:[43]

[92]

Asperger's Disorder is a condition that exists on the Autism spectrum. It may be difficult or impossible for a person with no genuine Asperger's symptoms to create a history and persona consistent with the condition. However, even if the Respondent exhibits certain personality traits that are consistent with Asperger's, equally such symptoms are not exclusively apparent only in a person with a discernable autism spectrum disorder.
In the Respondent's case, the evidence of both reporting psychologists is seriously compromised by the flawed and conflicted history given to each of them. Furthermore, there are many aspects to the Respondent's academic, professional and social life, particularly as reported in his testimonials, which are either inconsistent with a diagnosis of Asperger's Disorder or at the very least inconsistent with any borderline disorder being relevant to the Respondent's misconduct. Accordingly, I do not consider that the principles enunciated in the Verdins case or subsequent authorities, acknowledging the relevance of psychological or psychiatric disorders to general deterrence, have any relevance to this case.
I am also not satisfied that either psychologist provided a proper basis for concluding that the Respondent poses a very low risk of re-offending. In particular:
- (a) Dr List gave evidence that as recently as his last session with him, the Respondent had 'not yet been able to put it together'. That is, the Respondent had still not gained a proper appreciation of why his conduct towards Ms GLS was wrong. Without that insight, I cannot be satisfied that the Respondent does not pose a risk to other female staff under his control or supervision;
- (b) Both Dr List and Ms Langford were not prepared to say that, as at the time of the hearing, the Respondent has all of the necessary techniques, coping mechanisms and information to satisfactorily address any Asperger's Disorder (or symptoms); and
- (c) Ms Langford recommended that the Respondent's treatment by her continue over a long period of at least more than one year, during which she would see him fortnightly.

[93]

Counsel provided written submissions upon which he expanded at the hearing.
Although there is no dispute about the facts which gave rise to this proceeding, Counsel for the Respondent explained that the Respondent continues to wrestle with his own understanding of what happened and his responsibility for it, and to what extent the Complainant, who is of similar age to the Respondent, contributed to the events that unfolded.
Counsel was careful to point out that there is no intention to defer responsibility to the Complainant. Rather, Counsel submitted that there was a complex personal relationship between the Respondent and the Complainant and that, subjectively, the Respondent misinterpreted messages and cues from the Complainant. He recognises now that he behaved in ways which were inappropriate.
Counsel submitted that the Respondent's inability to properly interpret messages and cues from the Complainant is partly attributed to him suffering from Asperger's Syndrome. Counsel relied upon the opinion of Dr List to the effect that a person with Asperger's Syndrome will have deficits in the quality of their empathy and ability to interpret cues and communication, particularly if there is an emotional or complicated component.
Counsel also relied upon Ms Langford's diagnosis of Asperger's Syndrome and confirmed that he has since commenced treatment with her in relation to the social deficits that are part of the disorder.[44]
In summary, Counsel relied upon three major submissions:
- (a) First, that the Tribunal must make an important distinction between, on the one hand, the impugned misconduct, which the Respondent admits; for which he is remorseful; and for which he has sought and continues to undergo rehabilitation; and on the other hand, the Respondent's suitability to practise;
- (b) Secondly, that the Respondent suffers real limitations by reason of his high functioning autism. As a consequence he has exhibited impaired mental functioning which impacts significantly upon his moral culpability and the relevance of general deterrence[45] and
- (c) Thirdly, that the Respondent represents an extremely low risk of repeat offending.
The Tribunal accepts the first submission, as a matter of principle. However, for the reasons already alluded to above, the Tribunal does not accept the second or third submissions.
Counsel relied upon the following cases in particular.
In Mullany v Psychologists Registration Board[46] the Board had found the appellant guilty of professional misconduct and suspended his registration for nine months. The misconduct concerned sexual harassment and threats committed by a registered psychologist in relation to his female trainee. On appeal, Gillard J endorsed the Board's finding of professional misconduct. However, in relation to penalty, Gillard J found that the Board had misdirected itself and taken certain irrelevant factors into consideration. His Honour reinforced the primary objective of a penalty as protective rather than punitive. In particular, it is necessary to determine whether the appellant now represents, in his professional activities, a risk to the community or pose a threat to the profession of psychology.[47] Gillard J examined the appellant's behaviour before and after the impugned conduct and concluded that he did not pose any appreciable ongoing risk. Counsel submitted that the circumstances of Mullany's case are comparable to the current case.
In Ha v Pharmacy Board of Victoria[48] the appellant had already been found guilty and sentenced in respect of indecent assaults against job applicants in his pharmacy business, which were subsequently the subject of disciplinary action. Gillard J again considered the appropriateness of the Board's sanction which included three months suspension. Gillard J noted that the appellant had already been punished through the criminal justice system and that the two prime objectives for the disciplinary sanction were the protection of the public and to maintain professional standards of the profession in the eyes of the public.[49] Having regard to the conduct of the appellant since the offending conduct; expert medical reports; and treatment, His Honour was satisfied that the appellant was highly unlikely to ever reoffend, whereas suspension of his registration could be financially ruinous.
In response, Counsel for the Commissioner submitted that these two cases relied upon by the Respondent are not relevantly comparable. In Mullany's case, the respondent through his Counsel, accepted that the conduct in question was a "boundary violation" as opposed to a sustained period of sexual harassment. In Ha's case, the offending conduct comprised of two distinct incidents of indecent assault. As the pharmacist was charged and convicted in respect of both incidents, at his disciplinary hearing, specific and general deterrence was not relevant as the criminal convictions addressed those concerns.
I agree with these observations. Furthermore, while the factual circumstances of each of these cases bear some similarity to the current case, the critical issue to be determined is whether the practitioner is insightful, remorseful and at low risk of reoffending. In each of the above cases, Gillard J was satisfied on the evidence that this was the case. For reasons more fully developed below, I am not so satisfied in relation to the Respondent.
Counsel also placed particular reliance upon the video recording of the parties which featured their interaction on 4 July 2011, which is the subject of the Twelfth incident. Counsel suggested that the Tribunal should not consider that the video, when taken as a whole, depicted grossly exploitative behaviour. Counsel described the Respondent's behaviour, as depicted in the video, as follows:

[95]

In relation to the Complainant's conduct in the video, Counsel suggested that there was no indication that she was placed in fear or that she was other than in control of the situation at all times; she was not exploited or preyed upon. In support of such interpretation, Counsel referred to the following:
- (a) The complainant engaged in physical touching; and said she would like to engage in sexual intercourse with him;
- (b) she lectured the Respondent about a range of conduct;[50]
- (c) she swore;[51]
- (d) she laughed and joked with him, writing on his neck with a pen, including a heart; and takes a picture of the writing; after which in conversation she puts her arm around him;[52];
- (e) while they are sitting side by side, he asks if he can touch her. She actively lets him put her arm around him and then keeps the arm in place while she asks him questions with her face up against his; she then playfully enters into a deer game with him;[53]
- (f) in the midst of his asking her for sex, she moves close to him and tells him he has "nice hands"; and strokes his hair;[54]
- (g) when she does not accept that he had been feeling 'pent up' before seeing her, she ridicules him, saying "poor little [Mr PLP]"; strokes his brow and playfully says he needs his temperature is taken, smiling at him. She then puts her arm around him and cuddles him.[55]
I have now had the opportunity to re-examine the videos. In my view, Respondent's Counsel has described certain excerpts in a manner which tends to present the Complainant as confident, somewhat sexually provocative and in control. In my view, the above descriptions do not present either a balanced or accurate representation of the videos, and in particular do not accurately represent the fact that:
- (a) the Respondent was aware that he was being filmed and may well have modified his behaviour accordingly;
- (b) the Complainant was subjected to a rising crescendo of persistent sexual innuendo and explicit sexual propositioning;
- (c) the Complainant consistently tried to deflect the Respondent's sexual advances into a conversation about his mother or his partner or other staff members;
- (d) the Complainant repeatedly referred to her friendship with the Respondent's partner and that he should be paying more attention to her; and
- (e) the Complainant appeared to be at pains to manage the situation in a way which did not offend or aggravate the Respondent.
Justice Garde made his findings after having heard the Respondent cross examined over 2 days and the Complainant cross examined over three days. Justice Garde also itemised in detail particular excerpts from the video where Counsel in that case alleged that the body language of the Complainant was inconsistent with her spoken word.[56] Nevertheless His Honour was satisfied that the Respondent's sexual advances, badgering for sexual intercourse and requests for sexual favours were unwelcome to the Complainant, consistent with her evidence, for a number of reasons:
- (a) She did not wish to have sexual intercourse with him at any time and did not do so;
- (b) The Respondent was determined in his insistence on sexual intercourse (making 78 requests) and not easily spurned;
- (c) She respected his partner's position and expressed the strong view that he should not be seeking sexual intercourse outside that relationship;
- (d) She was a friend of his partner and did not want to lose her as a friend or do anything with the Respondent that might upset her;
- (e) Her behaviour was consistent with her seeking to manage an unwanted situation. She had good reason not to want to upset the Respondent or lose his support. He was her employer and the principal of the firm for which she worked. He was in a position of authority and superiority. He was her supervisor and she was dependent upon his support for her continued placement; and
- (f) She gave evidence that she found his sexual advances unwelcome, and they upset her, which evidence His Honour accepted.
In my view the 4 July videos reflect the Respondent's arrogance and confidence in seeking to coerce and humiliate Ms GLS for his own sexual ends, consistent with earlier behaviour toward her.
Counsel submitted that the Respondent was not an appropriate vehicle for general deterrence by reason of his emotionally deprived and abusive background; and the fact that he has Asperger's Disorder. I disagree. There is no credible evidence which links the Respondent's alleged childhood abuse and neglect to the subject misconduct. Furthermore, for the reasons given, there is no credible basis for the diagnosis of an autism spectrum disorder or that such disorder compromised the Respondent's ability to think or act rationally or appropriately in a social or professional context. To the contrary, the objective evidence supports the view that the Respondent has been:
- (a) Highly successful academically;
- (b) Highly respected by clientele and professional colleagues alike;
- (c) Able to maintain a long term committed domestic relationship;
- (d) Able to actively participate in community affairs, including voluntary legal service and aspiring to Council representation; and
- (e) Able to actively participate in a private club association and other social interactions.
Council referred the Tribunal to a number of authorities which considered the relevance of a diagnosis of Asperger's syndrome. If I am correct in my findings in this case, such authorities have no relevance.
Finally, Counsel referred to the Respondent's prior good character; impeccable reputation; history of working hard to build up a viable legal practice; no indication of a sexual disorder, alcohol or drug problem; and having already been subject to a significant financial penalty by reason of damages ordered against him in the previous Tribunal proceeding. I accept that all of these matters should properly be taken into account in the Respondent's favour, in the determination of an appropriate sanction.
Counsel recommended, by way of appropriate sanction, the imposition of a reprimand; the making of a supervision order; continued psychological treatment; and an order for payment of the Commissioner's costs.

[101]

The Commissioner submits to the effect that the case Victorian Lawyers RPA v Constantinou[60] provides relevant guidance to an appropriate disposition in this case. In Constantinou's case, the practitioner sexually propositioned three female clients on three separate occasions, in each case detaining them in his locked office and in two cases masturbating in front of them. There was no question that the practitioner was not technically competent and he was previously of good character. However, there was no explanation for his behaviour and as in this case, the Tribunal was not satisfied that the practitioner was not at risk of re-offending. At the time of the hearing, the practitioner had not practised for five months. He was ordered not to apply for a practising certificate for another 15 ½ months and that he not be entitled to re-apply for a practising certificate until he demonstrated his fitness to engage in legal practice.
In Legal Profession Tribunal v Moir[61] the practitioner engaged in a luncheon alone with a disabled client, although it had been prearranged that the mother would also attend. After the meal, the practitioner and client continued drinking for an extended period at the hotel and later at a house of the practitioner's friends, where sexual intercourse took place. The practitioner confessed to his misconduct at an early stage and resigned from his position. The tribunal was satisfied that he had shown a substantial degree of real remorse and was unlikely ever to re-offend. The practitioner was disqualified from legal practice for a further three years.
In Legal Profession Tribunal v Reynolds[62] a barrister sexually propositioned a client while ostensibly attending her motel room to obtain instructions the night before a court hearing at a country court. In a letter to the Ethics Committee, the barrister initially denied any wrongdoing, accusing the complainant of making up her allegations. The tribunal treated this response as an aggravating factor, found the barrister guilty of unsatisfactory conduct on one charge and misconduct at common law and under statute, on the second charge, and suspended the barrister's practising certificate for six months.
Counsel submitted that every case of inappropriate sexual conduct to which the Tribunal was referred had resulted in some period of suspension. Although the Respondent has previously incurred an order for compensation, this was in order to compensate the Complainant for her suffering and should not detract from an appropriate sanction in the current proceeding which serves an entirely different purpose.
Given that here the Respondent has continued to practise, consistent with the approach in Constantinou, Counsel submitted that the Tribunal should cancel the Respondent's current practising certificate and order that he not apply for a new practicing certificate for 12 months. The Respondent would then have to satisfy the Commissioner that he is fit to engage in legal practice.

[131]

The Respondent tendered testimonials from 13 persons. Following is a brief summary:
- (a) the coordinator of the community legal service which the Respondent started in 2007 describes him as 'professional and trustworthy'; and that clients of the service have reported back to the office that he is 'caring, thorough and diligent when dealing [with] people's legal issues'. The author does not acknowledge being aware of the earlier Tribunal findings or the current disciplinary proceeding;
- (b) the executive officer of a community support organisation which helps coordinate a community legal advice service, acknowledges the Respondent's support and describes him as having 'demonstrated a high standard of professionalism and has been a huge asset to our service'. The author does not acknowledge being aware of the earlier Tribunal findings or the current disciplinary proceeding;
- (c) two clients of the Respondent give very favourable testimonials to his services. The authors do not acknowledge being aware of the earlier Tribunal findings or the current disciplinary proceeding;;
- (d) a solicitor, now in private practice, formerly employed for 12 months by the Respondent, testifies to the Respondent's professionalism and competence; to his active participation in the local community, particularly legal service; and the distress which the current proceedings have caused to him. The author does acknowledge being aware of the earlier Tribunal findings and the current disciplinary proceeding;
- (e) a client and former trainer of the Respondent for his private pilot's licence in 2006, testifies as to the Respondent's 'high professional standard both as a pilot and as a legal practitioner'. The author does acknowledge being aware of the earlier Tribunal findings;
- (f) a solicitor in private practice who has had dealings with the Respondent as well as referring, on occasions, clients to him, testifies that he has found him to be 'professional, diligent and of reputable character'. The author does acknowledge being aware of the earlier Tribunal findings and the current disciplinary proceeding and suggests that the Respondent's conduct is 'wholly out of character.'
- (g) A barrister who has been briefed frequently by the Respondent in the past describes him as a 'decent and honest person' and had the impression that 'his clients trusted him to be caring of them and their interests'. The Respondent has also expressed to him, regret for his misconduct and admitted that he was wrong. The author does acknowledge being aware of the earlier Tribunal findings;
- (h) A solicitor who has had professional dealings with the Respondent, attests to his professionalism. Both he and the Respondent and their respective spouses have also socialised together. The Respondent also told the solicitor that he had advised the Commissioner that he regretted his conduct, which he recognised was grossly inappropriate. The Respondent also calls the solicitor after hours on his mobile to discuss how he feels. The author does acknowledge being aware of the earlier Tribunal findings;
- (i) A businessperson, who has known the Respondent both personally and professionally for over 10 years and has met his family and many clients, attests to his good character and integrity and having been a major asset to the community. The author does not acknowledge being aware of the Tribunal findings or the current disciplinary proceeding;
- (j) A businessman who has known the Respondent for 15 years and operated an office near to the Respondent, attests to his 'honesty, integrity and sincerity.' He also indicated that he assisted the Respondent when he stood for local Council elections in 2003. He also states:

[141]

Having carefully scrutinised the evidence which support admitted findings made by Garde J, I am comfortably satisfied, on the balance of probabilities, that the charge of professional misconduct is proven for the purpose of the statutory definition and at common law.
For the reasons stated, the evidence as to the Respondent's risk of re offending and his level of insight and acceptance of the gravity of his conduct is most unsatisfactory. Indeed, the Respondent has been portrayed as someone reflecting a Dr Jekyll and Mr Hyde personality. On the one hand, he is seen by his clientele, professional colleagues and close friends as a highly competent, respected, intelligent and outgoing solicitor and friend. On the other hand, his behaviour toward the Complainant portrays a persistent sexual predator capable of considerable cunning, humiliating behaviour and deceit.
I am not satisfied that the expert evidence is sufficiently reliable to accept a diagnosis of autism spectrum disorder or Asperger's syndrome.
I am not satisfied that there is any reasonable basis for accepting that the Respondent's moral culpability or the relevance of general deterrence is in any way diminished in the context of this case.
I find that specific deterrence is a particularly relevant objective in determining any sanction, notwithstanding the absence of prior findings of misconduct against the Respondent. The Respondent's misconduct which has been described in detail, traverses 11 separate incidents in the workplace where over a period of two months he engaged in relentless predatory sexual pursuit of the Complainant which also involved humiliating and deceitful behaviour. Although the Respondent does not in any way fall to be punished in this proceeding for the manner in which he resisted the Complainant's allegations in the previous proceeding, such conduct is indicative of the Respondent's readiness to demonise the Complainant and absolve his own misconduct.
I also find that general deterrence is a particularly important objective in this case. The misconduct committed by the Respondent demonstrates a gross abuse of his superior position as the supervising solicitor and of the professional trust placed in him. While there is no suggestion that the Respondent misappropriated client moneys or otherwise acted dishonestly in his professional practice as a solicitor, there is no doubt that such behaviour caused serious and ongoing anxiety, stress and humiliation to the Complainant, in circumstances where she had nowhere to turn other than to make an external complaint and immediately risk dismissal. In addition, such behaviour inevitably and deservedly brings the profession into disrepute and warrants sanctions sufficiently severe to reflect appropriate condemnation and compel compliance in future.
His Honour Judge Ross (as he then was) observed in Legal Services Commissioner v Brott:[80]

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)

Legal Services Commissioner v PLP (Legal Practice) [2014] VCAT 793 (1 July 2014)

Parties

Legislation Cited (2)