National Standards Committee v Keith Ian Jefferies

JurisdictionNew Zealand
JudgeD F Clarkson,Mr J Bishop,Mr W Chapman,Ms M Scholtens,Ms P Walker
Judgment Date03 October 2016
Neutral Citation[2016] NZLCDT 29
Docket NumberLCDT 018/16
CourtLawyers and Conveyancers’ Disciplinary Tribunal
Date03 October 2016

Under the Lawyers and Conveyancers Act 2006

BETWEEN
National Standards Committee
Applicant
and
Keith Ian Jefferies
Practitioner

[2016] NZLCDT 29

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr J Bishop

Mr W Chapman

Ms M Scholtens QC

Ms P Walker

LCDT 018/16

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Penalty hearing for a practitioner who had been convicted of an offence punishable by imprisonment and which tended to bring his profession into disrepute — the practitioner was convicted of two counts of possession of methamphetamine (Class A), one count of possession of a Class C drug; and one charge of possession of utensils — the amounts in possession were of a residue nature only, but the search had located both drugs and utensils in three places, the practitioner's home, car and workplace — the practitioner had initially lied to the police about the ownership or possession of the items found, claiming they belonged to someone else — he later pleaded guilty following a negotiation over the summary of facts — the National Standards Committee sought suspension from practice - whether alcohol disciplinary cases were relevant to the drug offending — whether the sentence imposed on the criminal charge was determinative when considering penalty - whether suspension was required to show public disapproval.

COUNSEL

Mr P Davey for the Standards Committee

Mr R Lithgow QC for the Practitioner

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL ON PENALTY
Introduction
1

Mr Jefferies appeared before us for a penalty hearing, consequent on his acknowledgement of a charge that:

He had been convicted of an offence punishable by imprisonment and which tended to bring his profession into disrepute.

2

The key difference between the National Standards Committee who brought the charge, and Mr Jefferies' counsel, is over the necessity of suspension of Mr Jefferies from practice.

Background
3

The starting point in assessing penalty is the seriousness of the conduct, so a brief background is required.

4

Mr Jefferies was convicted of two counts of possession of methamphetamine (Class A); one of possession of bk-MDMA (Class C); and one charge of possession of utensils. The amounts in possession were of a residue nature only, but the search, which took place in July 2014, located both drugs and utensils in three places, the practitioner's home, car and workplace.

5

Mr Jefferies claims he has no addiction and has been clean since this time. He provided a certificate from his therapist confirming his self referral, diligent attendance, clean drug testing and certifying that he did not have “an addictive personality” (although that term was not defined).

6

Rather than maintain his right to silence during the search, Mr Jefferies, a lawyer who has acted in criminal matters for 30 years, told the police that items in the car belonged to someone else, said the same about those in his office and commented that other people visited his home. In other words he lied about the ownership or possession of the items.

7

Mr Jefferies pleaded guilty in August of 2015, following a negotiation over the summary of facts. This was over a year after being charged. He was sentenced to total fines of $1,300, having sought a discharge without conviction. On appeal the sentence was upheld.

8

Unsurprisingly Mr Jefferies' offending attracted considerable media attention.

Submissions on seriousness
9

Mr Davey, on behalf of the National Standards Committee drew the Tribunal's attention to three cases where drug use had been considered, to emphasise that the Tribunal has taken the use of methamphetamine to be a serious matter. In the Wootton 1 matter, a practitioner who had been convicted of possession of methamphetamine and a pipe was suspended for a year. In the Wootton situation the practitioner had developed a serious addiction and had been out of practice for two years at the time of the hearing undertaking rehabilitation. Although the convictions are similar we accept that in that matter the practitioner was so seriously affected as to reflect on his fitness to practise, which is not the case in the present matter.

10

It is accepted by the Standards Committee that the second matter, the Thomson 2 matter was a situation of more serious conduct, in that the practitioner was also a police prosecutor who had posted videos of himself using methamphetamine on social media. He accepted himself that he was not fit to practise and did not oppose being struck-off the roll.

11

Finally the Blair 3 matter was again more serious than the present case because although cannabis was involved there was a sale to an undercover police officer. In that matter the practitioner was suspended for three years.

12

We were then referred to cases involving serious alcohol abuse, namely Ravelich, 4 Beacham, 5 Taffs 6 and Rohde. 7

13

Mr Lithgow QC, counsel for Mr Jefferies pointed out that although these latter cases referred to misuse of a legal drug, that they had all engaged the second limb of s 241(d), namely that they reflected on the practitioner's fitness to practise. It is accepted that all four of these cases involved patterns of addiction and therefore raised fitness issues. The penalties imposed in those cases reflect, to some extent, the steps taken by practitioners to address and deal with the addiction (or not, in the case of Ms Beacham).

14

Mr Lithgow submits that the Tribunal ought to take its lead on the issue of seriousness, from the sentence imposed on the practitioner, or at least from the maximum available sentence. In this case the maximum was 12 months imprisonment. Whilst we accept that this must be a factor in determining seriousness we certainly do not see it as determinative, as previously stated in the Murray 8 case.

15

We must also have regard to how the public might judge the seriousness of a criminal lawyer, who represents clients facing drug charges, succumbing to the use of a Class A drug in this way 9. Assessment of such public perception is assisted by membership on the Tribunal of lay members, who Parliament intended to represent the public and consumers of legal services.

16

In summary, we consider the offending to be of a serious nature, although not at the very high end, or such as would impact directly on clients.

Aggravating Features
17

We consider that lying to the police in relation to a number of areas of the search to be an aggravating feature. Mr Jefferies could simply have relied on his right to silence, but he has made the situation worse by his actions. We also consider aggravating, the fact that the items were found in three places, indicating a more pervasive “habit” rather than an isolated incident.

Mitigating Factors
18

The practitioner's guilty plea, albeit somewhat delayed in the criminal jurisdiction, for what seem to be reasonable grounds, as well as his acknowledgement of this charge, are factors which count in his favour.

19

Furthermore, apart from one previous “unsatisfactory conduct” finding this practitioner does not have a disciplinary history of significant concern. He has practised for approximately 30 years in an area of law which can be stressful and has not remunerated him at all well. He should certainly be given credit for serving the community in this way.

Deterrence
20

There is a need for general deterrence in the marking of the profession's disapproval for the offending of this sort. In order to obtain the substances involved, it is axiomatic that the practitioner will have dealt with criminals. Perhaps this included his clients, he was not clear in this regard.

2...

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