1. The Tribunal finds that the Respondent is guilty of professional misconduct within the terms of s 4.4.3(1)(b) of the Legal Profession Act 2004 and at common law.
2. Pursuant to s 4.4.17(b) of the Legal Profession Act 2004 the current local practising certificate of the Respondent shall be cancelled with effect from 1 September 2014.
3. Pursuant to s 4.4.17(c) and s 4.4.19(j) of the Legal Profession Act 2004 the Respondent is disqualified from applying for a local practising certificate for a period of eight months with effect from 1 September 2014.
4. Pursuant to s 4.4.19(n) of the Legal Profession Act 2004 the Respondent shall not make further application for a local practising certificate without also providing evidence satisfactory to the Legal Services Commissioner, including relevant psychological and/or psychiatric evidence, that he is a fit and proper person for legal practice.
5. Pursuant to s 4.4.19(e) of the Legal Profession Act 2004 the Respondent shall not be issued with a local practising certificate on or after 1 May 2015 unless such certificate is subject to the condition that, for a period of 2 years, the Respondent shall not employ or otherwise supervise any female law student or graduate whose employment or supervision is a pre-requisite to satisfying academic criteria or admission to practice.
6. The Tribunal orders the Respondent to pay the Applicant's costs of this proceeding, such costs to be determined by the Costs Court, in default of agreement.
7. The payment of costs is stayed until 1 September 2014 or such later date as may be determined by the Costs Court.

The Respondent's name has been anonymised to protect the identity of the Complainant, in accordance with previous Orders made by Garde J.

Dr I. Freckelton, Queens Counsel and Mr J. Selimi, Junior Counsel

1. This is an Application by the Legal Services Commissioner (the 'Commissioner') to the Victorian Civil and Administrative Tribunal ('VCAT') pursuant to section 4.4.13(2) of the Legal Profession Act 2004 (the 'Act') for orders against the Respondent under Division 4 of Part 4.4 of the Act.
2. In his Amended Application for Order dated 12 March 2014, the Commissioner set out his reasons for making the Application as follows:
   1. The Respondent was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria [in] 2001.
   2. At all material times, the Respondent:

1. held a practising certificate entitling him to practise as a principal; 2. was the principal and sole proprietor of [name of firm], a legal practice he established in about November 2002 in [name of suburb], Victoria; and

1. 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.
2. 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.

Professional misconduct pursuant to section 4.4.3(1)(b) of the Act.

The particulars relied upon are those set out in [paragraphs 1-9 of the Amended Application for Order].

Alternatively to Charge 1 above, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law.

The particulars relied upon are those set out in [paragraphs 1-9 of the Amended Application for Order].

1. By an Amended Response by the Respondent to the Applicant's Amended Notice to Admit Facts and Authenticity of Documents dated 12 March 2014,[7] the Respondent admitted all facts and the authenticity of documents as contained in the Commissioner's Amended Application for Order.
2. Therefore, this proceeding was conducted as a plea, on the basis that the Respondent:
   • (a) admitted all of the relevant findings made by Garde J;[8] and
   • (b) acknowledged that he has engaged in professional misconduct within the meaning of s 4.4.3(1)(b) of the Act.

1. The Commissioner has brought a Charge of professional misconduct as a result of the Respondent engaging in 11 instances of sexual harassment against one of his employees (Ms GLS) as found by Garde J in GLS v PLP.[9]
2. His Honour found that 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. Justice Garde found that the Respondent was in a position of authority and control in relation to Ms GLS.
3. The Respondent has pleaded guilty and has admitted to all of the findings made by Garde J in respect of the 11 incidents of sexual harassment. The incidents are set out in His Honour's reasons as follows:
4. First incident 'uninvited verbal sexual advance followed by rejection'; and Second incident 'uninvited sexual comments, including reference to going home and fantasising after rejection'[10]
   1. The first incident is said by Ms GLS to have occurred in the week commencing 23 May 2011 in Mr PLP's office after everyone had gone home, and is fully set out in her witness statement. Mr PLP said that he got 'so turned on by just watching you' adding that:

You turn me on without having to do anything. [Mr PLP's partner] just does not do that for me. She never has. You are more my type than she will ever be. We are going to be good for each other.

1. The second incident is said by Ms GLS to have occurred in or about the first week of June 2011. Mr PLP walked up behind Ms GLS and placed his hands on her shoulders saying:

Can I massage your shoulders, I know how to, you don't understand what you do to me, I get so horny just watching you.

Later in the conversation Ms GLS says that Mr PLP said:

Do you know what I am going to do tonight? I am going home and fantasising about you.

1. Not only does Mr PLP deny both incidents, he says that Ms GLS made daily suggestive remarks about how he turned her on and that she would love to sleep with him. Mr PLP's evidenced is highly implausible for the reasons that I have given. I accept that these incidents caused offence and humiliation to Ms GLS. They were uninvited, and unwelcome to her. I accept that a reasonable person would have anticipated that she would be offended or humiliated by these incidents.
2. For the reasons that I have given, I accept Ms GLS's evidence as to the first and second incidents, and reject that of Mr PLP.
3. I find that:
   • each of the first and second incidents occurred as deposed to by Ms GLS;
   • each of the incidents occurred in Mr PLP's office during the placement when Ms GLS was an employee of Mr PLP;
   • each of the incidents constituted 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;
   • Ms GLS regarded Mr PLP's conduct as unwelcome, undesirable and offensive; and
   • a reasonable person having regard to all of the circumstances would have anticipated that Ms GLS would be offended or humiliated.
4. The Third incident related to a pornographic video of the Respondent which he showed in the workplace';[11] and the Fourth incident related to 'direct sexual comments followed by rejection'.[12]
   1. Ms GLS says that the third incident occurred in or around the second week of June 2011 after the long weekend. Mr PLP directed her attention to his computer screen. A video opened showing Mr PLP lying on a bed. Mr PLP stated:

Shhh just watch. I have always wanted to do this. Star in my own movie. I did this whilst I was in [Greek island]. A mate recorded this for me. I am doing it with a Russian prostitute. Watch.

1. Ms GLS observed Mr PLP totally naked with the prostitute performing a sexual act on him. Ms GLS said she was upset, demeaned and degraded, and sat there with tears rolling down her face, thinking about what she had gotten herself into.
2. Mr PLP denies that he had a pornographic video, or that the incident occurred with the prostitute. He says that no such video ever existed. He says that Ms GLS fabricated the incident.
3. Ms GLS's account of the incident is supported by:
   • Ms CW1[13] who gave evidence that she was shown a video of a Russian prostitute performing a sexual act with Mr PLP in or about September 2010 following his visit to a Greek island in mid 2010.
   • The transcript of 4 July 2011 which refers to holidays being a long time ago followed by the statement by him:

This statement presupposes knowledge by Ms GLS of this fact.

• Mr PLP's subsequent statement to Ms GLS, as recorded by the transcript on 4 July 2011 where he said:

You know how big it is anyway. You saw it in the video, so you know it isn't as long as a black man's ...

1. Ms GLS gave evidence that the fourth incident occurred later in the same day after Mr PLP had locked the office. He said in a low voice to her ear:

I so want to fuck you. I want to touch your boobs and feel your nipples, I want to taste them. I want to fuck you, please let me fuck you.

1. Mr PLP denies this incident and says that it is a fabrication.
2. 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.
3. 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.
4. 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.
5. 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:

When Ms GLS responded by saying that [the partner] was a great cook, Mr PLP said:

1. Mr PLP denied the incident and said that it is a fabrication.
2. Ms GLS says that the sixth incident occurred on or around 29 June 2011, one evening, at approximately 5:45pm when no-one was in the office other than Mr PLP and herself. He locked the office and sat on the couch. She was at her desk. He called out:

Do you know that no other woman has ever frustrated me the way that you do, come and sit on the couch and let me play with you.

1. Ms GLS says that Mr PLP kept on insisting saying:

Please let me. No-one will ever find out, I have locked the door and no-one will hear anything. There is no-one here.

1. Mr PLP denies this incident and says that it is a fabrication.
2. The seventh incident is said by Ms GLS to have occurred on or around 1 July 2011. Mr PLP approached her from behind whilst she was typing and began massaging her shoulders and neck, saying:

The reason why you are not agreeing to sleep with me is because you are so stressed. I will fix that for you now.

When Ms GLS tried to stand up and get out of her chair, Mr PLP pushed her back down into the chair by applying pressure to her shoulders.

I know what girls want and I know how to massage. Don't forget my mother was a masseuse and I watched her for a long time massaging clients.

1. Mr PLP became more forceful with his massage and would not allow Ms GLS to get out of the chair. He began to bring his hands around to the front of her shoulders. She pushed her chair back into Mr PLP's knee and he let go. He then said:

1. When Ms GLS demanded that the door be unlocked, and she be let out now, Mr PLP offered to walk her to her car. Following further resistance by Mr PLP to opening the door, she told him -

Just leave me alone go home to your girlfriend. I will scream and call the police if you do not unlock that door.

1. Ms GLS says that she went home in tears.
2. Mr PLP denies this incident.
3. Ms GLS says that the eighth incident occurred later that night on 1 July 2011. She received a telephone call from Mr PLP's partner who asked her:

What happened tonight? [Mr PLP] called me and told me that I have to convince you to sleep with him or he would get rid of me.

1. Ms GLS said that she responded to Mr PLP's partner to the effect that she would not now or ever sleep with Mr PLP. Ms GLS says that the partner said that if she did not, Mr PLP might not sign her papers - then what will you do.
2. The conduct alleged by Ms GLS is entirely consistent with Mr PLP's conduct on other occasions and on the evening of 4 July 2011 as demonstrated by the video. In addition, the language, actions and manner of propositioning is similar to that shown in the video of 4 July 2011 and consistent with that experienced by Ms GLS on other occasions.
3. I accept Ms GLS's evidence as to the fifth, sixth and seventh incidents and reject Mr PLP's denials and claims of fabrication. I also accept that each incident was not solicited by her and was unwelcome to her. A reasonable person would have anticipated that she would be offended, humiliated or intimidated.
4. I find that:
   • the fifth, sixth and seventh incidents occurred as deposed by Ms GLS;
   • the fifth, sixth and seventh incidents occurred in Mr PLP's office during the time that Ms GLS was an employee of Mr PLP;
   • the fifth, sixth and seventh incidents constituted unwelcome requests for sexual favours or 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 experienced in any of the fifth, sixth and seventh incidents;
   • Ms GLS regarded Mr PLP's conduct as unwelcome, undesirable and offensive; and
   • a reasonable person having regard to all of the circumstances would have anticipated that Ms GLS would be offended, humiliated or intimidated as to each incident.
5. The Ninth incident related to a 'photo of Mr PLP naked'.[17]
   1. Ms GLS says that in or around early July 2011, she was on the phone to Mr PLP's partner. She says that Mr PLP interrupted the conversation and told her:

I will get [Mr PLP's partner] to send you a really good picture of me.

A picture was sent to her and it was a photo of Mr PLP naked standing on the edge of the bed with his arms stretched out. Ms GLS says she responded that she would put the picture in the paper for the world to see.

1. 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.
2. 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.
3. 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.
4. Ms GLS's mobile phone shows that the photograph was sent to her on Monday 27 June 2011 at 1:06am.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

1. I have set out in the Schedule some parts of the transcript as made from Mr PLP's videos recorded on the evening of 4 July 2011. There can be no doubt about the intensity of Mr PLP's propositioning and of Ms GLS's determined resistance to having sex with him.

1. I am satisfied that Mr PLP's sexual advances, badgering for sexual intercourse and requests for sexual favours were unwelcome to Ms GLS, as she herself said in her evidence. They were unwelcome to her for a number of reasons:

(a) She did not wish to have sexual intercourse with Mr PLP at any time and did not do so.

(b) Mr PLP was determined in his insistence on sexual intercourse and not easily spurned. He admitted to making 78 requests for sexual intercourse - a remarkable number given that the sound recording is approximately an hour long. No employee should ever be subject to sexual badgering of this nature. It would be surprising if Ms GLS or anyone else would welcome such behaviour. Mr PLP repeatedly hounded and harried Ms GLS for sex throughout the conversation.

(c) Ms GLS respected Mr PLP's partner's position as Mr PLP's partner. Given that he had a partner, Ms GLS was of the strong view the Mr PLP should not be seeking sexual intercourse outside that relationship. She did not want to be involved in any breach by Mr PLP of his obligations to his partner.

(d) Ms GLS was a friend of Mr PLP's partner. She did not want to lose her as a friend or do anything with Mr PLP that might upset her.

(e) Finally, as she said in evidence she found his sexual advances unwelcome, and they upset her.

1. Ms GLS made her reasons for refusing to have sexual intercourse with Mr PLP very clear during the incidents on 4 July 2011.

1. I accept Ms GLS's evidence as to the twelfth incident, and reject Mr PLP's account. Given the videos and sound recordings, there is no doubt that Mr PLP hounded and pressured Ms GLS for sexual intercourse and other sexual favours.
2. I find that:
   • the twelfth incident occurred generally as alleged by Ms GLS;
   • the incident occurred at Mr PLP's office during the time that Ms GLS was an employee of Mr PLP;
   • the twelfth incident constituted unwelcome sexual advances, unwelcome requests for sexual favours and unwelcome conduct of a sexual nature;
   • Ms GLS did not solicit or invite the conduct by Mr PLP;
   • Ms GLS regarded Mr PLP's conduct as unwelcome, undesirable and offensive; and
   • a reasonable person having regard to all of the circumstances would have anticipated that Ms GLS would be offended, humiliated and intimidated by the incident.
3. The Thirteenth incident related to a 'sexual text message from Mr PLP to Ms GLS'.[19]
   1. On the morning of 5 July 2011, following the incident the previous evening, Mr PLP sent Ms GLS a text message:

Cum you say humm I cum last night with my imagination and you can guess the rest!!!

Best u get home quick [Mr PLP's partner] will make ur dreams cum true.

1. Once again, Ms GLS referred to Mr PLP's partner in her rejection of his comment of a sexual nature. The comment clearly has a sexual message and connotation. Counsel for Ms GLS was not heard to contend that it did not.
2. I find that:
   • the thirteenth incident occurred as deposed by Ms GLS;
   • the thirteenth incident occurred at a time when Ms GLS was an employee of Mr PLP;
   • the thirteenth incident constituted unwelcome sexual conduct of a sexual nature by Mr PLP to Ms GLS;
   • Ms GLS did not solicit or invite the sending of the text message to her;
   • Ms GLS regarded the text message that she received from Mr PLP as unwelcome, undesirable, offensive and humiliating; and
   • a reasonable person having regard to all the circumstances would have anticipated that Ms GLS would be offended and humiliated as to Mr PLP's text message and conduct.
3. The Fourteenth incident related to sexual advances including an attempt to sexually touch Ms GLS.[20]
   1. Ms GLS gave evidence that on or around 6 July 2011, she was sitting at the conference table in Mr PLP's office when Mr PLP said to her looking down her top:

I just want a little feel. Please let me. I have locked the door.

[Mr PLP's partner] will never find out don't worry, please.

1. A little later, she says that Mr PLP tried forcibly to put his hand down her top almost ripping it. Ms GLS said that she yelled at Mr PLP:

1. As she tried to get up, Mr PLP grabbed her arm and would not let go. According to Ms GLS, he said to her:

Please just let me fuck you once, I promise just once, just once please.

Ms GLS raised her voice and told Mr PLP to get his hand off her now. Mr PLP continued to hold her arm tightly begging her saying:

What part of 'no' don't you understand? You are a f[r]iend!

She says she forced herself up out of her chair and left the office.

1. Mr PLP said in his amended witness statement that this incident was a complete fabrication and that no such event took place.
2. In the late witness statement, he advanced a different version of the incident. He said that the correct date of the incident was 4 July 2011. He said that he did not forcibly put his hand down Ms GLS's top. She opened her top after the video ended prematurely and showed him her right nipple. He said that he asked her to cover herself and she did so. The conference ended amicably.
3. I accept Ms GLS's evidence as to the fourteenth incident, and reject Mr PLP's various accounts. Given his conduct on 4 July 2011, it is highly unlikely to say the least that he asked Ms GLS to cover up her exposed nipple. Equally, given her consistent position and refusal to have sex with him, it is extremely unlikely that she opened her top to show him her right nipple. Mr PLP's account is far fetched and most improbable.
4. I find that:
   • the fourteenth incident occurred generally as alleged by Ms GLS;
   • the incident occurred at Mr PLP's office during the time that Ms GLS was employed by Mr PLP;
   • the fourteenth incident constituted an unwelcome sexual advance, and an unwelcome request for sexual favours by Mr PLP to Ms GLS;
   • it also constituted unwelcome conduct of a sexual nature in relation to Ms GLS;
   • Ms GLS did not solicit or invite the conduct by Mr PLP;
   • Ms GLS regarded Mr PLP's conduct as unwelcome, undesirable and offensive; and
   • a reasonable person in all of the circumstances would have anticipated that Ms GLS would be offended, humiliated and intimidated by the conduct.

1. The Respondent elected not to give evidence on his own behalf. The relevance of this circumstance in the context of this application will be further addressed below. There are a number of facts which were admitted by the Respondent or submitted by his Counsel, without contention. His family and social history is otherwise set out in some detail in the report of Dr List.
2. The Respondent is admitted to practice as a Barrister and Solicitor. He is also a registered migration agent and holds qualifications in accounting and a Masters of Business Administration. He is currently 46 years old.
3. The Respondent has held a principal practising certificate from 2002 and has been practising as a sole practitioner in his own firm in a Melbourne suburb. The practice has four employees, three of whom are part-time. He has also set up a free legal advice service, which has been in operation since 2007.
4. The Respondent suffers certain medical conditions, none of which are suggested to have any connection with the subject misconduct.
5. The Respondent has been in a long-term domestic relationship with his partner since 2004. They live in their own home, own two cars, have limited savings and no other significant assets.

1. The Respondent relies on a report from Dr List dated 10 April 2014. Mr List also gave oral evidence.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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].
7. 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.
8. 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.

1. At the time of assessment (25 February and 14 March 2014) the Respondent reported wanting some answers in relation to the possibility that he may meet the criteria for a mild form of Asperger's.
2. Ms Langford conducted two tests on the Respondent, namely the Adult Asperger Assessment (AAA) (Baron-Cohen, Wheelwright, Robinson & Woodbury Smith, 2005)[24] and the Gilliam Asperger's Disorder Scale GADS (Pro-Ed, 2001). Ms Langford details the results of her testing in her report and provides the following summary and conclusion:[25]

[Mr PLP] presented as a competent and cooperative person who was motivated to engage in psychological assessment for Asperger's Disorder. [Mr PLP] has the pattern of abilities that are often evident in Asperger's Disorder. His ability to visually organize and process information is extremely well-developed. He has good Working Memory abilities. He is more comfortable with accounts and activities that are visual and concrete and less comfortable when describing or reasoning in an abstract sense.

The personality assessment highlighted [Mr PLP's] propensity to experience heightened anxiety in some situations, and also revealed [Mr PLP's] low need for interpersonal closeness and his difficulties with interpreting others' opinions of himself. These characteristics are typical of an individual with Asperger's Disorder. He also seeks acceptance and appeasement of others but without the interpersonal knowledge that would aid his protection. He has often appeared vulnerable and naive to others. [Mr PLP's] background of lack of social and interpersonal experiences has significantly contributed to his current charges and he has been unable to protect himself or his firm and determine a reasonable course of action.

The behavioural assessment indicated the presence of many features consistent with Asperger's Disorder. The primary difficulties were found in the areas of social interaction (understanding conventions and reading the thoughts and feelings of others), preoccupation with restricted patterns of interest, difficulty with being receptive to multiple perspectives of a situation or problem and impairments in verbal and non-verbal communication.

Interview and assessment procedures confirmed [Mr PLP] as someone whose intensity and range of symptoms fit the diagnostic criteria (DSM-IV-TR) for a mild form of Asperger's Disorder. Whilst [Mr PLP] presented with sufficient features to reach this diagnosis, he has also been able to minimise the level of impairment this has imposed on his life through his vocational success and extraordinary dedication to a long and intensive procession of courses through to his current level of qualifications [Mr PLP's] primary impairment appears to manifest in the form of social interaction and communication difficulties, factors likely to impact on his close interpersonal relationships and his extreme difficulties with ascribing motives and intentions to others.

Individuals with Asperger's Disorder are neither totally egocentric as seen in 'classic' cases of autism, nor do they have the level of awareness necessary to be socially and communicatively proficient. Difficulty appreciating the subtle nuances of social communication often leads to anxiety, misunderstandings and sometimes, conflict. A common coping mechanism is retreating into isolative special interests. Greater preoccupation with specific interests often leads to negative social experiences, further enhancement of social anxiety and increased withdrawal, placing the individual at a greater risk of developing a reactive depression. Therefore, stress management plays an important part in coping with daily life and preventing further difficulties. Individuals with traits of Asperger's Disorder can manage their chosen work and study roles often extremely well.

The assessment process has also illustrated [Mr PLP's] many strengths that have enabled him to adapt to and manage in some areas of his life. [Mr PLP] is also a determined and focussed person whose capacity to devote his energies to his profession, has further assisted his occupational progression.

1. Both experts were cross examined at length, and also questioned by the Tribunal. In my view, there are many unsatisfactory aspects to the opinions given by both experts. Consequently, I am not satisfied that a diagnosis of Asperger's Disorder has been proven on balance.
2. The primary reason for reaching this conclusion is because the diagnosis proffered by each psychologist was acknowledged by them to be dependent on the veracity of the Respondent's account of his own history; the Respondent's account of the Complainant's conduct; and the Respondent's account of his own emotions, perceptions, interpretations and reactions towards Ms GLS.
3. I am satisfied that the evidence unequivocally demonstrates that the Respondent's account of relevant events to both psychologists was contrary to the findings of Garde J, which the Respondent has otherwise accepted; was contrary to admissions made in correspondence to the Commissioner; and was also inconsistent with the testimonials relied upon.
4. I am also not satisfied that either psychologist was prepared to modify or qualify their opinions in the light of evidence contrary to the history which they had been given.
5. For example, the Respondent told Dr List that:
   • (a) Ms GLS had told him on numerous occasions that she wanted to have sex with him; [26]whereas Garde J rejected that claim;[27]
   • (b) He feared for his safety;[28]whereas Garde J found such assertion to be 'extremely unlikely' and cites many examples to the contrary;[29]
   • (c) Ms GLS had made threats to blackmail him about sexual harassment;[30] whereas Garde J rejected that claim;[31]

(d) He set up cameras to protect himself from Ms GLS's threat/blackmail;[32] whereas Garde J rejected that claim;[33] the Respondent accepted the decision of Garde J in relation to the conduct in which he had engaged, in his response to the Commissioner dated 21 May 2013 and also acknowledged that his motives in part were for sexual gratification;[34] and the Respondent gave an entirely different reason for setting up the cameras in his letter to the Commissioner dated 20 August 2013;[35]

• (e) He never asked for sex until 4 July; whereas Garde J found the conversations depicted in the video on 4 July as entirely consistent with the Respondent having sought to have sexual intercourse with Ms GLS on previous occasions;[36] and
• (f) His actions were never offensive to her[37]; whereas the Respondent acknowledged the Complainant's 'considerable distress and hurt' in his letter to the Commissioner dated 21 May 2013.[38]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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:

[Mr PLP] reported in detail his current legal predicament, his complete confusion about the charges, his ongoing desire for friendship and acceptance and his tendency to give in when bullied. [Mr PLP's] account was difficult to follow. He reports with tangential information, lack of referents and confused timelines. [Mr PLP] appeared needy and would easily be manipulated. His narrative showed up the difficulties for [him] in understanding the actions of another, his potential for confusing offered friendship and intimate relating and his failure to identify potential conflicts of interest or the predatory nature of another person when it came to his business interests. He appeared to have little recognition of the appropriate conduct of a person in a placement role in a firm and seriously failed to question the motives or actions of that person. [Mr PLP] appears to have been manipulated into acceptance of unreasonable conduct on the part of the other person and misperception of the persons' offered friendship. When he started to have doubts, he attempted to 'catch out' the person in video form. His attempt showed his naivety in dealing with a person in an interpersonal relationship..[39]

1. 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.
2. 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]
3. 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.
4. 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.
5. 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.
6. 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'.
7. 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.
8. I found Ms Langford to be unwilling to make basic concessions during cross-examination. The following passage is illustrative:[43]

MR SENATHIRAJAH: Given that [the Respondent] has just started treatment, he has not yet acquired necessary techniques and discipline if you like, knowledge, to address properly and currently, his Asperger's, do you agree?

MS LANGFORD: I find there is often quite a relief in knowing that there is a disorder that describes life long problems, and once they have that knowledge with superior cognitive abilities they can take up the process of how do I act and what should I be aware of in future events, it's really difficult for me to say whether [The Respondent] with a very short time with the knowledge that he has Asperger's and is now able to manage himself in all situations and environments or if that will take longer. From what I understand from [the Respondent], he is very aware of where he has gone wrong and would not ever wish to create this type of situation again. That is what I understand. Remember, therapy is quite personal ... [interrupted]

MR SENATHIRAJAH: I'm not being critical, the point is that you can't tell Her Honour that he is able to cope properly with his Asperger's.

MS LANGFORD: I don't think he is going to make the same error again because it is not just Asperger's it's an awareness.

HER HONOUR: You have to answer the question, just focus on the question.

ME SENATHIRAJAH: You are not able to tell Her Honour that in the brief time you have been seeing the Respondent that he has all the techniques and the knowledge to be able to cope properly with Asperger's, not after six months or whatever, now?

MS LANGFORD: The answer is that [the Respondent] requires information about his Asperger's and he has come to acquire that.

HER HONOUR: I'm sorry is the answer yes or no. The question is just can you say now that he is fine today? Which would suggest he doesn't need treatment.

MS LANGFORD: The answer is no, he does need treatment.

1. 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.
2. 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.
3. 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.

1. Counsel provided written submissions upon which he expanded at the hearing.
2. 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.
3. 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.
4. 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.
5. 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]
6. 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.
7. 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.
8. Counsel relied upon the following cases in particular.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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:

[the Respondent's] conduct was inappropriate for the workplace and was tasteless and repeated... The conduct... Is iterative and obsessive. This is consistent with its being the product of or at least significantly influenced by his Asberger's Disorder. No violence is involved and no exploitative demeanour is present. On the contrary, he frequently appears to be in a passive almost childlike role.

1. 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]
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

1. Counsel referred the Tribunal to the following cases.
2. In Legal Ombudsman v Moir[57] the Full Tribunal held that:

the penalty must be such as to indicate [the Tribunal's] view of the gravity of the relevant conduct and of its consequences upon [the victim].

1. The gravity of the Respondent's conduct is concisely stated in Garde J's findings:

I find that much of Mr PLP's evidence is inherently implausible. He was the type of witness who refuses to make any admissions until confronted in the witness box with no alternative. In general, I accept Ms GLS's evidence as to what occurred between her and Mr PLP and reject his evidence. There are many reasons why her evidence is to be preferred, and his evidence is not credible:...[58]

In this case, Ms GLS has suffered severely as a result of Mr PLP's sexual harassment. I have found proven eleven incidents of sexual harassment extending over much of the period of Ms GLS's placement with Mr PLP's firm. The incidents of sexual harassment include a serious and extreme incident of sexual harassment on the evening of 4 July 2011 when she was also covertly filmed by Mr PLP. It is apparent from the evidence that Ms GLS has suffered significantly as a result of the incidents of sexual harassment. [59]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. Section 4.4.3 of the Act provides for an inclusive definition of professional misconduct:

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring 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.

1. Whether conduct constitutes professional misconduct within the meaning of sub-section (b), should be determined by looking at whether at the time of the conduct the legal practitioner was a fit and proper person to practise, without regard to any subsequent reformative or rehabilitative conduct. Any such subsequent conduct should be taken into account only on the question of penalty.[63]
2. For the purpose of the alternative charge, professional misconduct at common law is engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable.[64]

1. The standard of proof of misconduct is the normal civil standard: on the balance of probabilities.
2. In the context of disciplinary proceedings, the relevant standard is applied having regard to the principles enunciated in Briginshaw v Briginshaw.[65] After considering the evidence applicable to the relevant charge the Tribunal will be satisfied, on the balance of probabilities, if the allegation is made out to the reasonable satisfaction of the Tribunal. Dixon J expanded upon this concept in the following often quoted passage:

The truth is that, when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained independently of the nature of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal in such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect influences.[66]

1. In NOM v DPP & Ors,[67] which concerned an appeal from the County Court against a refusal to revoke a Non Custodial Supervision Order, the Court of Appeal had occasion to consider the Briginshaw test in the context of s 140 of the Evidence Act 2008. After an extensive analysis of relevant authorities, the Court reached a conclusion which, in my view, is equally applicable to applications such as the present one:[68]

Accepting that the standard of proof expressed in Briginshaw requires actual persuasion on the part of a fact-finder - and that is materially different to an assessment based only on a mere mathematical probability - s 140(2) of the Evidence Act reflects the conceptual principles underpinning that standard. Significantly, nothing was said to cast any doubt on the line of authority to which we have referred that has construed s 140(2) as embracing the principle in Briginshaw. We consider that line of authority plainly correct. In any event, such a view is now so settled that this Court should not now depart from an accepted construction of a uniform legislative provision of the Commonwealth and a number of States.

Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature.[69] Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.

1. In Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited[70] the Court of Appeal again had occasion to consider the Briginshaw test in the context of s 140 of the Evidence Act 2008. The Court observed that while the considerations embodied in the Briginshaw test are now reflected in s 140 of the Evidence Act 2008, that Act only applies to proceedings in a Victorian court[71] which is defined to include persons or bodies required to apply the laws of evidence. The VCAT Act makes plain that the Tribunal is not bound by the rules of evidence. Accordingly:

...provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law...it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue.[72]

1. In this case, the conduct alleged, as encompassed under Charge 1 or the alternative Charge 2, concerned 11 separate incidents and conduct of the Respondent between about 23 May 2011 and about 6 July 2011. The Respondent has pleaded guilty to the Charge. This case is slightly unusual to the extent that there has been a previous hearing in the context of another application by the Complainant, where detailed findings were made by Garde J. and the Respondent has accepted those findings for the purpose of his guilty plea in this proceeding.
2. Notwithstanding the plea of guilty, before making a finding that either Charge is proven, the Tribunal must carefully scrutinise the evidence as comprised in the admitted findings. Having done so, the Tribunal must then be comfortably satisfied, on the balance of probabilities, that the relevant facts in each incident, taken as a whole, prove the Charge.
3. In my view, the misconduct which is set out in detail preliminary to the findings made by Garde J. satisfies the criteria for professional misconduct both pursuant to s 4.4.3(1)(b) of the Act and at common law. On any basis the conduct is intolerable, disgraceful and dishonourable. It directly confronts the honesty and integrity of the practitioner both in the context of the conduct of a legal practice as well as in the context of the minimum standard of behaviour expected by the members of the profession and the community.

1. After hearing an application, if the Tribunal is satisfied that the practitioner is guilty of professional misconduct, it may make any orders it thinks fit including, any one or more of the orders specified in ss 4.4.17, 4.4.18 or 4.4.19 of the Act.

1. The principles relevant to determining the appropriate disposition in disciplinary proceedings against lawyers were reconsidered most recently by the Court of Appeal in Stirling v Legal Services Commissioner. It is appropriate to set out in some detail those factors upon which the Court placed particular emphasis: [73]

"[57] As was observed by the Tribunal, the primary aim of an order of this kind is to protect the public and to protect the reputation of the profession. In order to achieve this aim, the court may also act in a punitive fashion. As Maxwell P noted in Quinn v Law Institute of Victoria, the orders available to a court in these proceedings are "punitive as well as protective" and the Tribunal's jurisdiction "is inescapably - indeed, intentionally - punitive, in the service of protecting the public". [74]

[58] Secondly, as the Tribunal is acting as a professional disciplinary tribunal, the deterrent effect is a key element in assessing an appropriate penalty. In Quinn, Maxwell P noted the role of both specific and general deterrence in determining an appropriate penalty in these types of proceedings:

The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

[60] In assessing specific deterrence, there must be an assessment as to how the penalty reflects the behavior of the accused. In Brott, Judge Ross also noted that this factor involves:

A consideration in relation to specific deterrence is the extent to which a practitioner displays insight into his wrongdoing such as to demonstrate an appreciation that what was done was wrong and must not recur.

[61] In Morris v Psychological Registration Board, Harper J held that a practitioner who did not have the requisite insight into his wrongdoing "ought not, if the public is to be protected, to be allowed to practise."

1. The Court of Appeal also held that a practitioner's failure to give evidence in disciplinary proceedings entitled the disciplinary tribunal to draw adverse inferences as to the practitioner's veracity of claims of rehabilitation and remorse:

[155] While there is no authority to suggest it is a duty of a legal practitioner to give evidence in a disciplinary tribunal, it is open for this court to question that failure, especially where an accused is seeking to positively show they are fit and proper to practise. In Re Veron: Ex parte Law Society of New South Wales,113 the NSW Court of Appeal noted:

The respondent is an officer of the Court...disciplinary proceedings in this jurisdiction in the state have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society ... was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issue at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.

[156] Similar comments were made by Tobias JA in Meakes:

Yet these were the very matters which were wholly within the knowledge of the respondent and which he was [sic] did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent's refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inferences one can draw from the respondent's refusal to sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.

In my opinion the failure of the respondent to give sworn evidence was inexcusable.

[157] The resolution to this matter sits somewhere in between the competing submissions of the respondent and the appellant. The respondent is correct to say that the forensic decision of the appellant not to provide a full explanation left the Tribunal with the unenviable task of attempting to piece together the evidence available to it to provide a complete picture of the appellant's evidence. Further, it was open to the Tribunal, as it is open to us, to question the veracity of the claims of rehabilitation and remorse because the appellant did not provide it with any first hand explanation as to his charged conduct or the rehabilitation he has allegedly undergone.

[158] On the other hand, the appellant is correct in noting that it is not open to a court or disciplinary tribunal to simply ignore the other evidence put on the grounds that the appellant could provide a more complete explanation by giving direct evidence.

[159] In assessing an appropriate penalty, the appellant's failure to give evidence does somewhat diminish his claims as to rehabilitation and remorse. However, it should not be seen as eliminating those matters altogether, especially considering the weight of evidence pointing the other way from character references and the appellant's conduct in repaying his ATO debt."

1. The Respondent in this case similarly chose not to give evidence on his own behalf. Reference will be made to the testimonials upon which the Respondent relied shortly.
2. In summary, in determining an appropriate sanction in a disciplinary proceeding of this nature, the principle guidelines are:
   • (a) Protection of the public;
   • (b) Protection of the profession;
   • (c) A punitive element; and
   • (d) Sentencing principles of:
     1. Specific deterrence, which should have particular regard to the level of insight demonstrated by a respondent into the nature and gravity of the conduct;
     2. General deterrence; and
     3. Denunciation of the offending conduct.
3. A respondent's preparedness to give evidence on their own behalf, may also be relevant to the credibility and reliability of submissions made regarding rehabilitation and remorse.
4. As discussed further below, there are many troubling aspects to the Respondent's failure to give evidence, particularly in light of the history given to the reporting psychologists.
5. When the Tribunal formulates a sanction, it must take into account all relevant matters; including its financial impact, for any adverse financial impact is self-evidently penal. However, the overriding concern is with public protection.[75]
6. It follows as a necessary corollary that it is not an objective of an order, to seek to maximise or maintain the practitioner's capacity to earn a living and pay his/her debts. Otherwise all legal practitioners who find themselves in impecunious circumstances, could, on that basis alone, seek to resist an order to suspend or cancel their practising certificate.

1. 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:

In various legal matters of personal and commercial nature, [the Respondent] has displayed an unquestionable clarity of thought and precision and treated myself and staff including other tenants, with utmost respect. I have found his dedication and commitment to the local community concerns, very uplifting, with a genuine desire to help others'.

The author does acknowledge being aware of the earlier Tribunal findings;

(k) A barrister who has been briefed frequently by the Respondent attests to his professionalism; he always paid accounts promptly and represented his clients with enthusiasm and compassion. The Respondent had also expressed that his behaviour was wrong and the barrister accepted that he was truly remorseful. The author does acknowledge being aware of the earlier Tribunal findings;

(l) A medical practitioner, who has performed Aircrew Medical Examinations on him for his Private Pilots licence since 2006. As a result of these assessments, the doctor found that the Respondent was a fit and proper character (in terms of his appearance, personality and psychological state) and did not suffer any psychiatric problems that would inhibit his abilities as a private pilot or in his legal practice. The doctor has also found the Respondent to be of good character, intelligent and hard-working. The author does acknowledge being aware of the earlier Tribunal findings, which appeared to be totally out of character.

(m) The Respondent's partner provided a supportive reference and attests to the Respondent's love and caring for his mother; their love of their pet dogs; and the company they enjoy through a local Dog Club. The testimonial also contains material which is irrelevant or speculative. However, the partner has forgiven the Respondent for his misconduct and believes he has changed, for the better, as a result.

1. The Tribunal accepts that the testimonials are very supportive of the Respondent in the following respects:
   • (a) he is a technically competent, committed and compassionate solicitor;
   • (b) his professional and personal qualities are highly respected;
   • (c) he has made a significant contribution to the provision of free legal services to the public; and
   • (d) he has demonstrated a significant commitment to the community.
2. Significantly, and as indicated above, none of the testimonials describe the Respondent in the terms in which he has described himself to the reporting psychologists or in terms which he claims others have described him, namely as "eccentric, likeable, vulnerable and preoccupied with subjects of personal interest" ...or that... "He has often appeared vulnerable and naive to others".[76]
3. Furthermore, there is no suggestion in any of the testimonials that the Respondent is socially isolated, has difficulty forming relationships or has difficulty interacting appropriately in a personal or professional manner.
4. I also note the report of the general medical practice attended by the Respondent[77] in which certain medical issues are listed. In any event, Respondent's Counsel did not seek to rely upon any of the matters disclosed in this report.

1. I acknowledge that any interruption to the Respondent's ability to operate his legal practice will have potentially serious financial consequences. However, the Respondent has given no direct evidence of his current assets and liabilities; and has provided no financial information from sources such as his accountant.
2. I also acknowledge that the Respondent has incurred a significant financial penalty, by reason of the award of damages in favour of the Complainant, which of itself, ought constitute a deterrent.

1. The Tribunal was not afforded any direct evidence from the Respondent as to his level of remorse or insight into his offending conduct and the distress, humiliation and anxiety to which he subjected the Complainant.
2. I acknowledge that the Respondent expressed remorse and regret to the reporting psychologists and through his Counsel. However, the current state of mind of the Respondent and his genuine acceptance of the findings made by His Honour Justice Garde remain ambiguous at best. Respondent's Counsel candidly acknowledged to the effect that the Respondent is still struggling to comprehend his relationship with the Complainant. However, it is of great concern that the history which the Respondent has given to both psychologists continues to portray the Respondent as the victim and the Complainant in the nature of a manipulative sexual predator. Neither psychologist, relying upon the history given to them, had any opportunity to address this apparent dichotomy.

1. I accept that the Respondent has no adverse disciplinary history and no matters pending. Furthermore there is no evidence of any complaint from clientele in relation to his handling of their legal affairs or in relation to any other matter.

1. I accept, consistent with sentencing principles generally, that a guilty plea of itself is usually evidence of some remorse and carries with it the added advantage of saving the Tribunal and the Applicant the expense of a contested hearing. However, I also note that the guilty plea was forthcoming only after the Respondent chose to contest all allegations in the previous hearing before the Tribunal, where the Complainant was cross examined at length.
2. The Respondent's guilty plea was forthcoming prior to the commencement of the hearing, with the consequence that the Complainant was spared any further attendance. I accept that this is a relevant mitigating factor.
3. In the circumstances, the Respondent is entitled to a discount on penalty, which is moderated in the circumstances by reason of the approach which he took to the Complainant in the earlier hearing.

1. The Respondent's failure to enter the witness-box and give a direct account of the circumstances of his offending and of his claims of remorse and rehabilitation, and expose himself to the scrutiny of cross-examination, must reflect significantly adversely upon those claims. In my view, such significance is greater than that applicable in Stirling's case by reason that there are apparent inconsistencies in the evidence presented to the Tribunal, which on their face are irreconcilable, and the current level of the Respondent's insight, genuine contrition and risk of reoffending in a similar manner, remain problematic at best.
2. In the history given to both psychologists, the Respondent has apparently attempted to portray the Complainant as being sexually provocative, and responsible for the Respondent's misreading of the situation. However, the findings made by Garde J[78] and accepted by the Respondent, preclude the Respondent from reducing his culpability by this means. Furthermore, in relation to the 4th July and covert videos taken by the Respondent, certain matters which were previously considered by Garde J[79] have again been raised in this proceeding to deflect blame away from the Respondent. I have addressed these matters already and am equally unpersuaded that they reflect in any way adversely upon the Complainant or otherwise portray the Respondent in a vulnerable light.
3. I acknowledge that the Respondent has committed himself to psychotherapy sessions with Dr List in the past and ongoing therapeutic sessions with Ms Langford, which of itself demonstrates a preparedness to better understand his behaviour and motivations; and address any predisposing behavioural factors to further reoffending.

1. 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.
2. 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.
3. I am not satisfied that the expert evidence is sufficiently reliable to accept a diagnosis of autism spectrum disorder or Asperger's syndrome.
4. 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.
5. 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.
6. 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.
7. His Honour Judge Ross (as he then was) observed in Legal Services Commissioner v Brott:[80]

The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Related to general deterrence is the proposition that in deciding an appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.

1. I also accept that denunciation is relevant in the circumstances where the misconduct was persistent and increasingly intrusive and confronting over a 2 month period, with an absence of any significant extenuating circumstances.
2. The misconduct represents a most serious dereliction of duty by a legal practitioner, particularly in respect of his serious breach of professional ethical behaviour.
3. By electing not to give evidence on his own behalf at the plea hearing the Respondent has denied to the Tribunal any further explanation for his conduct; his current level of insight into such conduct and the manner in which his psychological therapy to date has given him different coping mechanisms so as to impact upon his risk of reoffending. In the circumstances, I cannot of course speculate upon any of these matters and cannot make any realistic findings as to his current risk of reoffending and rehabilitative prospects.
4. Accordingly, protection of the public remains a paramount consideration and in particular the protection of female administrative and professional staff over whom the Respondent might be in a position to exert care, supervision and control.
5. The package of sanctions appropriate to the serious charge of professional misconduct must be directed:
   • (a) primarily at protecting the public, in circumstances where I cannot be satisfied that the Respondent is not at risk of reoffending in a similar manner; and I cannot be satisfied that he has shown appropriate insight and acceptance of responsibility for his misconduct and the detrimental effect which it had upon the Complainant;
   • (b) specific and general deterrence; and
   • (c) denunciation of the misconduct.
6. It is appropriate to order a period of disqualification from legal practice, reduced to take account of the mitigating factors outlined above and the deterrent effect occasioned by the previous order for damages.

1. The Tribunal finds that the Respondent is guilty of professional misconduct within the terms of s 4.4.3(1)(b) and at common law.
2. This is an appropriate case in which to order cancellation of the practitioner's practising certificate in preference to mere suspension, having regard to the objectives referred to above; the fact that I am not satisfied that the Respondent represents a low risk of reoffending; and the evidence presents a conflicted picture of the Respondent's level of insight and genuine remorse in respect of the nature and gravity of his misconduct.
3. The practising certificate of the Respondent will be cancelled and he will be disqualified from applying for a practising certificate for a period of eight months from the date of disqualification.
4. The disqualification will be stayed until 1 September 2014, to enable the Respondent to make appropriate administrative arrangements for his practice.
5. It will be further ordered that at such time as the Respondent applies for a practising certificate at the end of the period of disqualification, he shall supply such psychological or psychiatric evidence, satisfactory to the Commissioner, attesting to his fitness to practice.
6. It will be further ordered that any future practising certificate shall contain the condition that the Respondent shall not engage any female employee whose employment is a condition of admission to practice or other pre-requisite for academic study for a period of two years from the date of issue of the practising certificate.
7. Finally, the Commissioner's costs of the proceeding will be paid by the Respondent.

[1] Annexure A contains a certificate dated 9 October 2013 provided by the Law Institute of Victoria under section 7.2.5(1) of the Act certifying the Respondent's entire practising certificate history.

[2] The identity of the Complainant has been anonymised to accord with the intent of Order 5 of the Orders made by VCAT on 13 March 2013 in proceeding number A355/2011. The Commissioner may seek additional ancillary orders.

[4] Annexure 3 contains a letter dated 22 March 2013 written to the Respondent; and Annexure 4 contains a letter dated 9 April 2013 wherein the Commissioner requested a full written explanation of the Respondent's conduct.

[8] Exibit C, Amended Response to by Respondent to the Applicant's Amended Notice to Admit Facts and Authenticity of Documents Dated 12 March 2014.

[9] (Human Rights) [2013] VCAT 221 (Judgment)

[10] Paragraphs [158]-[162] of the Judgment.

[11] Paragraphs [164]-[167] of the Judgment.

[12] Paragraphs [168]-[172] of the Judgment.

[13] A lay witness who gave evidence on behalf of the Complainant.

[14] Paragraphs [174] and [188]-[189] of the Judgment.

[15] Paragraphs [176]-[177] and [188]-[189] of the Judgment.

[16] Paragraphs [179]-[183] and [188]-[189] of the Judgment.

[17] Paragraphs [194]-[202] of the Judgment.

[18] Paragraphs [214]-[218], [221], [224]-[225] and [234]-[235] of the Judgment (plus Schedule) at pages 50-64.

[19] Paragraphs [237]-[240] of the Judgment.

[20] Paragraphs [242]-[250] of the Judgment.

[24] The Adult Asperger Assessment (AAA) is a self-report questionnaire designed to assess adult presentations of Asperger's Disorder. The AAA is linked to two screening instruments; the Autism Spectrum Quotient (AQ) and the Empathy Quotient (EQ). The AQ comprises 50 questions made up of 10 questions assessing 5 different areas; social skill, attention switching, attention to detail, communication and imagination.

[25] At p 5 & 6 of Ms Langford's report dated 19 March 2014.

[27] Judgement [103]-[105] cf [145]-[146], [146] (p27) , (p28), (p28), [155].

[34] Annex 5 at p2 states that 'cameras had been set up at the premises for security purposes because of the difficulties that we had experienced with thefts and threats'.

[39] Page 2 of Ms Langford's report dated 19 March 2014.

[40] Page 4 of Ms Langford's Report, date 19 March 2014.

[44] Respondent's Submissions at para 27

[45] Counsel also sought to invoke the principles first enunciated in R v Verdins [207] VSCA 102 at [26]

[48] [2002] VSC 322 per Gillard J.

[51] Video at 1:21.38; 24.00; 24:27; 28:00; 28:45; 29:31; 30:35; 33:37.

[52] Video at 1.27:15; 1:29.50; 34:30 .

[56] Set out at para 223 of the Judgement extracted above.

[57] Legal Profession Tribunal Proceeding No T0311 of 1999 at p8.

[60] Proceeding No T0368 and No. T0410 of 1998.

[63] See, for example, Legal Services Commissioner v Moore [2010] VCAT 742.

[64] Myers v Elman [1940] AC 282 at 288-289; see also New South Wales Bar Association v Murphy [2002] NSWCA 13 per Giles JA at [44]; Campbell v The Dental Board of Victoria [1999] VSC 113 at [23]- [24].

[65] [1938] HCA 34; 60 CLR 336.

[67] [2012] VSCA 198 (24 August 2012).

[69] Percy (1998) VSC 70, (Eames J); PL (No 4) [2004] VSC 21R, [45] (Kaye J); SKD [2009] VSC 363, [7] (Whelan J).

[70] [2013] VSCA 305.

[71] Evidence Act 2008 s 4.

[73] [2013] VSCA 374.

[74] Quinn v LIV [2007] VSCA 122 at [30]; See also Hannebery v Legal Ombudsman [1998] VSCA 142 at [22].

[75] Burgess v Michael McGarvie (Legal Services Commissioner) [2013] VSCA 142 and para 61.

[76] Ms Langford's report page 4; and repeated in Dr List's report page 9.

[78] At [222]-[227] of the Judgment.

[80] [2008] VCAT 2399 (24 November 2008).