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Prothonotary of the Supreme Court of New South Wales v Hansen [2023] NSWCA 189
Decision published: 15 August 2023
On 15 August 2023, the New South Wales Court of Appeal (Court of Appeal) published its decision in proceedings that the Prothonotary of the Supreme Court of New South Wales (Prothonotary) commenced against Mr Peter Andrew Hansen.
In the proceedings, the Prothonotary sought a declaration that Mr Hansen is not a fit and proper person to remain on the Roll and an order removing his name from the Roll. It sought that declaration and those orders on the basis Mr Hansen was convicted of, and sentenced to a term of imprisonment for, the following conduct:
- Intentionally importing prohibited tier 2 goods, namely, child pornography material in contravention of section 233BAB(5) of the Customs Act 1901 (Cth).
- Possessing child abuse material in contravention of section 91H(2) of the Crimes Act 1900 (NSW) (Crimes Act) ;
- Producing child pornography outside Australia, namely in the Philippines and Vietnam, in contravention of section 273.5(1) of the Criminal Code (Cth) (Criminal Code);
- Using a carriage service to transmit child pornography in contravention of section 474.19(1) of the Criminal Code;
- Using a carriage service to cause child pornography to be transmitted to himself in contravention of section 474.19(1) of the Criminal Code;
- Possessing child abuse material in contravention of section 91H(2) of the Crimes Act;
- Engaging in sexual intercourse with a child outside of Australia, namely, in the Philippines, in contravention of section 272.8(1) of the Criminal Code;
- Engaging in sexual activity (other than sexual intercourse) with a child and the sexual activity (other than sexual intercourse) with the child occurred outside of Australia, namely, the Philippines, in contravention of section 271.9(1) of the Criminal Code.
The Court of Appeal made the declaration and orders sought by the Prothonotary, which Mr Hansen did not oppose.
With respect to the Roll removal orders, the Court of Appeal held:
“[21] …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.
[22] 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.
[23] 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”.
[24] 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.
[25] 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.
[26] 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.
[27] The practitioner was aged 64 at the time of sentencing. 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.
[28] 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.”
