FXI: panic phenomena 

NCAT has waved through a child sex offender, permitting him to work as a lay associate at a law firm – a key step along the rocky pathway to admission as a lawyer. 

Further, his name is suppressed and henceforth he’s to be known as FXI. 

Stuart Westgarth and Aaron Suthers were in the tribunal’s saddle with this determination. 

FXI was convicted on six counts of using a carriage service for sexual activity with a person under 16 – between April 2013 and October 2014.

He was also convicted on four counts of using a carriage service to groom a person under 16 in the same time period. 

There were 10 victims, ranging in age between 13 and 15, and at the time of the offences FXI was 21 and ceased the offences when he was 23. He is now in his early thirties. Each offence carries a potential maximum penalty of between 12-15 years imprisonment. 

He pleaded guilty to all 10 offences and because of concerns about his mental health was handed an intensive community corrections order which was served for two years. 

There was remorse and rehabilitation. One of the consultant psychiatrists, Dr N. Prior, said the applicant … 

“… was not a paedophile but rather a sexually naive young man who was confused about his sexual identity in the context of suffering from an underlying and untreated major depressive order and panic phenomena.” 

Prior added that these problems are now successfully controlled with long-term psychoactive medication. 

FXI did well academically – Juris Doctor with distinction, the Juris Doctor medal from his university, and in 2020 a BCL from Oxford. 

There were other abrasions that were briskly swept into a corner: he was charged with breaching an AVO in 2013, which was dismissed due to the condition of his mental health; and in April 2007 he was cautioned as a juvenile, when he was between 14 and 15 years of age, for “telecommunications offences”. 

There was mention of a charge relating to a breach of the Child Protection Register and “a police FACTS judgment of a magistrate” dated September 23, 2022 – but nothing more enlightening. 

Even so, things looked relatively peachy and NCAT decided that the public didn’t need protection – particularly as special conditions have been attached to his approval to work as a lay associate at a law shop: 

• He cannot work on legal matters concerning children (odd given the finding that he not a risk of reoffending);

• He must be supervised by a lawyer while acting as a lay associate; 

• He must inform the principal of any law firm for which he works of his convictions and conditions on his approval, as well as providing a copy of NCAT’s reasons; and 

• Proof of compliance has to be provided to the Law Society. 

FXI successfully jumped through all the flaming hoops that resulted in his identity being burnt and expunged.

The Law Society didn’t care one way or the other if he was identified. And as was noted: 

“It may have been more helpful to the tribunal if the Law Society had given reasons for its neutral stance.” 

Open justice is all very well, but it has its limits and here FXI was one of those limits. If his identity was revealed it would cause “interpersonal problems” and he would be “embarrassed”; the prospect of getting a similar order for confidentiality would be diminished when he applied for admission should his identity be unveiled now; and anyway the child protection registry is confidential. 

Confidentiality orders are sprinkled more liberally in cases concerning lawyers, would-be lawyers, and the legal profession. If the reasons aren’t public and no one is aware of the identity of reformed offenders, then how do clients know if they have strayed from the path set down the wise men at NCAT?