Auckland Standards Committee no.5 v Rohde

• Jurisdiction: New Zealand
• Judge: D F Clarkson,Ms S Fitzgerald,Ms C Rowe,Ms S Sage,Mr W Smith
• Judgment Date: 12 April 2016
• Neutral Citation: [2016] NZLCDT 9
• Docket Number: LCDT 001/16
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 12 April 2016

In the Matter of the Lawyers and Conveyancers Act 2006

Between

Auckland Standards Committee No. 5

Applicant

and

Shane Alan Rohde

Respondent

[2016] NZLCDT 9

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms S Fitzgerald

Ms C Rowe

Ms S Sage

Mr W Smith

LCDT 001/16

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Decision on penalty following an admission by a practitioner that he had been convicted of offences punishable by imprisonment, which reflected on his fitness to practise, or tended to bring his profession into disrepute. The three convictions related to driving with excess breath alcohol as well as a charge of dangerous driving. The practitioner was attempting to evade the police at the time of the offending by driving away at high speeds — his colleague and junior employee had been in the car — the practitioner had refused to confirm for the police that he had been the driver, placing his colleague in danger of prosecution — the practitioner did not plead guilty until the day of his trial, six months later — the practitioner was now attending AA meetings regularly and had acknowledged his problem with alcohol — whether the practitioner's exercise of his right to silence in a situation where he placed his colleague in danger of prosecution was an aggravating feature in the disciplinary context — whether the public, as consumers, needed to be directly protected from the practitioner — and, what length of suspension should be imposed.

COUNSEL

Ms R Reed for the Standards Committee

Mr C Patterson for the Respondent

REASONS FOR DECISION ON PENALTY

1 Shane Rohde admitted a charge that he had been convicted of offences punishable by imprisonment, which reflected on his fitness to practise, or tended to bring his profession into disrepute.

2 The three convictions relied on were: one for excess breath alcohol in May 2014;

and in September 2015 excess breath alcohol as well as dangerous driving.

3 His behaviour, in attempting to evade the police in the 2015 incident is an aggravating feature. Mr Rohde sped away from the police, and during the brief chase reached speeds of up to 120 kilometres per hour in a suburban area. He refused to identify himself as the driver, having left his car, and thus put his colleague (and employee) who had been in the car, at risk of prosecution also.

4 While we recognise that exercising his right to silence cannot be questioned in the criminal law context, it cannot always be ignored in the disciplinary context. In this situation, as stated, doing so imperilled a colleague and employee. That is a matter which goes to the overall assessment of fitness to practise.

5 Although he eventually pleaded guilty, it was not until the day of the trial, six months after the event, so that his colleague and by then former employee, was required to be ready to give evidence against him.

6 Mr Rohde was sentenced to supervision (with special conditions as to alcohol counselling) and community work.

7 On the day of his sentencing he attended his first meeting at Alcoholics Anonymous (“AA”). He had, some days previously, been introduced to The Honourable John Banks, who, he says, persuaded him that he had a serious alcohol addiction, which he could not tackle alone, or without a serious intervention.

Issues

8 The issues for the Tribunal, in assessing penalty, are:

• 1. Do the public, as consumers, need to be directly protected from Mr Rohde?

• 2. Having regard to aggravating and mitigating features, and relevant case law, is a penalty less than suspension sufficient to mark the seriousness of Mr Rohde's conduct?

9 In her submissions for the Standards Committee, Ms Reed pointed out that Mr Rohde's evidence did not include any psychological assessment nor detailed plan as to the support structures within his practise and in relation to his recovery.

10 In response Mr Rohde filed a further affidavit which annexed a number of references expressing confidence in Mr Rohde as a person and in his recovery from his addiction. We then heard further oral evidence from Mr Rohde who was cross-examined by Ms Reed and answered questions from the Tribunal.

11 The Tribunal was also addressed by Mr Banks in relation to the steps Mr Rohde had taken towards abstinence and his intensive involvement with him during the first few months of that abstinence.

12 Specifically, Mr Rohde, since September 2015 has attended seven AA meetings per week. He said that if he misses one day he attends two meetings in a day to compensate. He has had a sponsor with whom he was in constant contact, particularly during times of stress. That sponsor has recently gone overseas but he now has a new sponsor who is also a practitioner, sober for a number of years. Mr Rohde feels well supported by this man as he does by a number of colleagues to whom he has disclosed his problem and within his own practise.

13 He has a supportive general practitioner and a very supportive family.

14 There is no evidence that clients of Mr Rohde have been put at risk by his offending or the alcohol problem that led to it. To the contrary we understand that it was a person commending the quality of Mr Rohde's work, to whom he disclosed his troubles and was consequently introduced to Mr Banks for assistance.

15 We consider that his openness with his firm and other colleagues, and the steps he has taken to safeguard his sobriety are a sufficient safety net. Thus the answer to the question posed in Issue 1 is “No”.

Level of Penalty

16 The Standards Committee sought a short period of suspension of three to six months. The submissions were based largely on the need to reflect the seriousness of the offending, Mr Rohde's disrespect for the law and on the basis of recent decisions of the Tribunal. We propose to address those under the heading of “comparable decisions”.

17 The starting point for any penalty discussion must be the seriousness of the offending. 1 Mr Rohde did not attempt to minimise the seriousness of his offending. That is a proper approach. Infractions of drink-driving law, even at relatively low levels, are serious, as is the dangerous driving involved in the second incident.

Aggravating Features

18 Mr Rohde's behaviour in attempting to evade the police by speeding off and then departing from his vehicle and refusing to disclose who had been driving must be seen as aggravating features in a disciplinary context. Arising from that, the lack of concern for the position in which he placed his employee and colleague, both at the time and subsequent to the offending, is reprehensible.

Mitigating Features

19 The...