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Solicitor charged with accessing child exploitation material reprimanded, avoids removal from roll
A solicitor convicted on charges of downloading and distributing child exploitation material has been suspended from practice for three years, with the tribunal finding that the circumstances surrounding the offence did not warrant removal from the roll.
Naomi Neilson
CW: Charges on exploitation material.
Mr Ferguson came to the Queensland Police Task Force Argos’ attention when he was downloading a CME video via a “peer to peer” network. This download made the material available to other internet users, which triggered a Commonwealth charge of using a carriage service to transmit in addition to procurement.
A police search on his home in December 2018 found more material, including CME, on computers and storage devices, although 95 to 99 per cent was made up of adult pornography and other unobjectionable material. He entered a plea of guilty.
The Queensland Civil and Administrative Tribunal (QCAT) said an order of removing a practitioner’s name should only be made “when the probability is the practitioner is permanently unfit to practice”. In this case, Mr Ferguson received a reprimand and will not be granted a practising certificate for three years, starting November 2019.
“The offending conduct occurred in the respondent’s private life, not as an incident of his legal practice. It is trite to observe that no legal practitioner should be engaged in any criminal conduct, let alone such serious offending as that involving child exploitation material,” the QCAT judgement found.
“But, as the Court of Appeal in this state noted in an appeal in a disciplinary proceeding concerning a legal practitioner who was serving a suspended sentence for child pornography offences, there is no inflexible principle that a person serving a suspended sentence was necessarily, by that fact alone, not of good fame and character and thus, not a fit and proper person to engage in legal practice.”
In deciding disciplinary orders, QCAT took into account a statutory declaration that addressed at some length the circumstances of the offending conduct, the matters that led to him engaging in the conduct, details of his psychological and psychiatric assistance, the impact on him and his family, and expressions of remorse.
QCAT also thought it sufficient to note that, before Mr Ferguson engaged in the conduct, he encountered and dealt with significant issues in his family life and in his professional life. The stressors, they found, led to a deterioration in Mr Ferguson’s personal life and a growing dependence on accessing online pornography. It was also paired with an adjustment disorder, depressed mood and alcohol abuse.
The tribunal said it was clear from the submissions that Mr Ferguson demonstrated insight and remorse for his offending. He cooperated fully with the authorities, entered a plea of guilty and provided full and frank statements.
“Importantly, he did not seek to excuse his behaviour. On the contrary, he recognised the need for reform, and immediately embarked on a program of rehabilitation. That included extended psychiatric and psychological assistance, details of which are set out in material before the tribunal,” QCAT noted.
“Having regard to the circumstances of the case, the time which has elapsed since the offending, and the demonstrated efforts to undergo rehabilitation, the tribunal considers that the appropriate sanction is a supervision for three years from the date of the respondent’s conviction for the subject offences.”
The judgement can be read in full on AustLII: Legal Services Commissioner v Ferguson [2021] QCAT 205 (8 July 2021).
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Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
