Prothonotary of the Supreme Court of New South Wales v Hansen

Court of Appeal (NSW)|2023-08-15|Before: Gleeson JA, Kirk JA

Solicitors: Crown Solicitor's Office (Applicant) File Number(s): 2023/00110014

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Basis of application

The practitioner was arrested on 6 October 2018 at Sydney International Airport. A search by law enforcement officers located a hard disc drive containing child pornography images. Shortly thereafter he was charged with transmission of 36 images and production of some 675 photos and videos.
A police investigation conducted in the Philippines resulted in further charges relating to sexual offences committed by the practitioner between 11 November and 28 December 2016, involving nine male victims between the ages of 10 and 14 years.
A search of the practitioner's home resulted in the discovery of further child pornography and child abuse material. Further charges were laid, including production of child pornography overseas during a period in April 2014, the transmission of child pornography (October 2016), producing child pornography overseas (November 2016), engaging in sexual intercourse and other sexual activities (November 2016), producing child pornography overseas (April, July and December 2017), engaging in sexual intercourse with a child overseas (December 2017), causing child pornography to be transmitted (January 2018), together with the charges in relation to offences committed in October 2018.
On 19 February 2021, the practitioner appeared for sentence in the District Court and confirmed his pleas of guilty to 32 offences. [2] On 4 June 2021, he was sentenced by Judge Bennett SC. The practitioner gave evidence on the sentencing, and tendered reports by a consultant psychiatrist, Dr Olaf Nielssen, who also gave oral evidence. The sentencing judgment dealt with the offending and the practitioner's evidence and submissions clearly and comprehensively over more than 100 pages and is available on Caselaw. [3]
Two of the offences involving possession of child abuse material were laid under s 91H(2) of the Crimes Act 1900 (NSW). A further 29 offences were laid under the Criminal Code 1995 (Cth), being 15 offences of producing child pornography outside Australia (s 273.5(1)), five offences of using a carriage service to cause child pornography to be transmitted to himself and to others (s 474.19(1)), six offences of engaging in sexual intercourse with a child outside Australia (s 272.8(1)), and three offences of engaging in sexual activity other than sexual intercourse with a child outside Australia (s 272.9(1)). The final offence was one of intentionally importing prohibited goods, namely child pornography, under the Customs Act 1901 (Cth), s 233BAB(5).
The judge indicated individual sentences ranging from four years (for engaging in sexual intercourse with a child outside Australia) to two years three months, for other sexual activity and use of the carriage service to transmit child pornography. With respect to the State offences, the judge specified an aggregate sentence of four years and three months, with a non-parole period of three years and two months to date from 6 October 2018. With respect to the Commonwealth offences, he fixed an aggregate sentence of 17 years with a non-parole period of 12 years, to commence on 6 October 2020, allowing an accumulation of two years on the State sentence. The practitioner will not be eligible for release on parole until 5 October 2032.
In his reasons for sentence, the judge made the following findings: "435 Notwithstanding, the offender's evidence that he will not reoffend and now has control of his tendencies, I find that the level of his actual interest demonstrated by the offender, his skill controlling information assembled for these proceedings, the range of his misconduct, the time over which it was perpetrated and his willingness to travel to other countries in pursuit of his aims, do not allow a finding that there are more than modest if any, prospects of rehabilitation. … 438 I find that the offences were motivated by his sexual interest in boys at their pubescent stages of life and he was willing to exploit them in their limited economic circumstances in their homeland in the pursuit of his goals. No other finding could be made in light of the exchanges with 'Maliboy Hornbag', the planning and sophistication shown in the arrangements he discussed in those exchanges, including control of the rewards he would offer these children, the selection of premises that mitigated the risk of discovery and the use of others in those locations to procure and facilitate his access to these children."
The judge applied a discount for the guilty pleas of 25% to each of the sentences indicated as appropriate for the individual offences.
On this application, the applicant tendered a statement of agreed facts prepared for the criminal proceedings in the District Court and the judgment of the District Court. On being served with a copy of that material, the practitioner responded, consenting to the declarations and orders sought in the summons and admitting all of the facts in the agreed statement of facts.

Legal principles

The inherent jurisdiction of the Supreme Court to remove the name of a practitioner from the roll is preserved by s 264 of the Legal Profession Uniform Law (NSW) and is expressly reflected in s 23 of the Uniform Law.
The circumstances in which the Court will consider removing a practitioner from the roll fall broadly into two categories, although the dividing line is by no means clear and in certain cases one may shade into the other. The first category comprises cases where misconduct has occurred in or in connection with the exercise of the practitioner's professional functions. The second category covers cases which may be described as personal misconduct. Fullagar J noted in Ziems v The Prothonotary of the Supreme Court of New South Wales, [4] referring to the judgment of Jordan CJ in this Court: "It is said that: 'The personal and the professional sides of his life cannot be dissociated.' If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister: see, e.g. In re Davis. [5] But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."
Mr Ziems had been struck off on the basis of a conviction of manslaughter, with a sentence of imprisonment for two years, the death being that of a motor cyclist who had been struck by the car driven by Mr Ziems whilst apparently under the influence of alcohol, but possibly suffering from a blow to the head. Kitto J stated, in a passage which has frequently been relied upon in such cases: [6] "It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the professional may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."
In concluding that Mr Ziems' offence did not require disbarment, Kitto J further stated: [7] "The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister's continuing a member of his profession. The conviction relates to an isolated occasion, and, considered by itself, as it must be on this appeal, it does not warrant any conclusion as to the man's general behaviour or inherent qualities …. It is not a conviction of a premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance for any professional function."
In contrast to circumstances relating to medical practitioners, sexual misconduct by legal practitioners may be remote from professional practice so that it will properly be characterised as personal misconduct. In A Solicitor v Council of the Law Society of New South Wales, [8] the appellant successfully challenged a finding of this Court that four offences of indecent assault on two daughters of a woman with whom he was in a domestic relationship were not remote from his professional practice. The connection relied upon was that the conduct involved "a form of breach of trust, being the trust reposed in the appellant by the mother of the children… and the children themselves". [9] The High Court stated: "34 … However, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous."
That is not to say that personal misconduct may not in appropriate circumstances justify removal of the practitioner's name from the roll; rather, it requires the court to focus upon whether, at the time of the hearing before the court, the practitioner is not a "fit and proper person" to remain on the roll. [10]
As Leeming JA stated in Council of the Law Society of New South Wales v Zhukovska: [11] "99 … If the Tribunal were satisfied not only that Ms Zhukovska was presently unfit to practise, but was likely to be unfit for the indefinite future, then it would be appropriate to order that her name be removed from the roll. If the Tribunal were not so satisfied, then such an order should not be made."
The phrase "likely to be unfit for the indefinite future" was chosen with some care. It reflected the reasoning of Campbell JA in Stanoevski v Council of the Law Society of New South Wales. [12] Thus, where the court is satisfied that suspension for a limited period is appropriate, because, for example, the misconduct in question does not demonstrate a defect of character where rehabilitation is doubtful, but some period of suspension is necessary to retain public confidence in the profession, a suspension should be imposed. However, to describe the condition for disbarment as "permanent unfitness" would appear to foreclose the possibility of rehabilitation or redemption and thus the opportunity for readmission. And there will be few cases in which a court could confidently say that unfitness will be permanent.
Although each case will turn on its own circumstances, in cases where personal misconduct has resulted in conviction and sentence, the fact of the particular sentence may provide a significant indication as to whether the practitioner is a fit and proper person to remain on the roll.
In the 2004 decision A Solicitor, the practitioner was originally sentenced in the Local Court to imprisonment for three months, but on appeal the sentence was reduced by the District Court to a deferral of sentence subject to a good behaviour bond for three years. An apparently lenient sentence should put the court on inquiry as to the circumstances; whereas a severe sentence, while subject to the same duty of inquiry, will have its own consequences because the public will not readily have confidence in a practitioner who is sentenced to a lengthy period of imprisonment.

Application of principles

It is appropriate for this Court to accept the facts as to the offending, which are both agreed and set out in detail in the published judgment of the District Court on sentence. They have been summarised above. The patent seriousness of the misconduct reduces the need for further exposition. However, the following features should be stated. First, the conduct itself was neither isolated nor opportunistic. It took place over a period of some four years, was carefully planned and occurred in circumstances where, as the sentencing judge noted, the likelihood of raising suspicions was managed. So much was apparent from a series of text messages between the practitioner and another person with similar interests and who had engaged in similar conduct.
Secondly, the age of the children rendered any question of consent legally irrelevant. Their involvement appears to have been manipulated by adult members of the communities in which they lived. The fact that their involvement was encouraged by small gifts the practitioner offered demonstrates the vulnerability of the children and the communities in which they lived to such exploitative activities. The harm which may be done to young children by sexual abuse by adults cannot be minimised.
Thirdly, although the practitioner called psychiatric evidence to support his claim of remorse and the possibility of rehabilitation, considered by the sentencing judge, in the passage set out at [8] above, the judge further stated that while he accepted the evidence of Dr Nielssen that the practitioner "probably has an abnormal sexual interest described as homosexual paedophilia", he was "not persuaded that the offender is genuinely contrite". [13]
The practitioner gave evidence before the sentencing judge and was cross-examined. The judge set out key aspects of his evidence in his reasons. Dr Nielssen also provided reports for the purpose of the sentencing and was cross-examined. In circumstances where the findings made by the sentencing judge have not been challenged in this Court, the Court should be comfortably satisfied as to their correctness. Their relevance is a different question. However, to the extent that they disclose that the sentencing judge had no confidence that the practitioner would not reoffend if given the opportunity, this Court may be comfortably satisfied that the unfitness demonstrated by the offending will continue for an indefinite period.
Fourthly, the effective sentence was imprisonment for a period of 19 years, with a non-parole period of 14 years. The seriousness of the offending is patently reflected in the sentence. The length of the sentence is sufficient to support a finding that disbarment is necessary in this case. The purpose of the disciplinary sanction is not to impose an additional punishment on the practitioner; rather, maintaining public confidence in the integrity of the profession requires it.
As to the likely length of the practitioner's unfitness to practice, as was accepted in Ziems, it is not appropriate that a practitioner remain on the roll whilst in custody. The practitioner will not be eligible for release until 5 October 2032, being a period a little over nine years from the time of this judgment.
The practitioner was aged 64 at the time of sentencing. [14] He will be about 75 years of age at the time of his release from custody. His physical and mental health and ability to practise law at that time cannot be reliably predicted. Accordingly, it is not appropriate simply to suspend his right to practise for the period of his imprisonment.
More importantly, the repeated and prolonged exploitation of young boys in Vietnam and in the Philippines who were between the ages of 10 and 14 demonstrates such a serious deficiency of character as to render the practitioner currently and for the foreseeable future a person who is not a fit and proper person to be a legal practitioner.
Accordingly, the Court makes orders in the following terms: 1. Declare that Peter Andrew Hansen is not a fit and proper person to remain on the roll of Australian lawyers. 2. Order that the name of Peter Andrew Hansen be removed from the roll of Australian lawyers. 3. Order that Mr Hansen pay the costs of the Prothonotary of these proceedings.

Endnotes

Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [9] (Hodgson JA, Beazley and McColl JJA agreeing).
Although the sentencing judge referred at [2] to 31 offences, there was a series from sequence 1-31 (omitting 21) and two other charges identified as H# 445/1 and H# 956/2, totalling 32.
R v Hansen [2021] NSWDC 457.
(1957) 97 CLR 279 at 290; [1957] HCA 46.
(1947) 75 CLR 409.
Ziems at 298.
Ziems at 299.
(2004) 216 CLR 253; [2004] HCA 1.
A Solicitor at [34].
A Solicitor at [38].
(2020) 102 NSWLR 655; [2020] NSWCA 163.
[2008] NSWCA 93 at [53]-[54].
Sentencing judgment at [428].
Sentencing judgment at [392]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2023

(2020) 102 NSWLR 655

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