The Western Australian State Administrative Tribunal (WASAT) has found David Charles Mizen guilty of professional misconduct in what it has described as one of the “clearer cases of a practitioner demonstrating that he is not a fit and proper person to be an Australian legal practitioner”. As part of the process, it has referred the matter to the Supreme Court to decide if he should be struck from the roll. 

The professional misconduct finding was handed down after Mr Mizen pleaded guilty in the District Court in December 2020 on one count of distribution of child exploitation material and two counts of possession of child exploitation material. He received three years, despite a maximum penalty of 10 and seven years, respectively. 

“The heinous conduct which constituted the offences of which the practitioner was convicted has not only manifested a complete disregard for compliance with the law itself, but was criminal conduct of a most serious kind,” WASAT wrote in judgment.

“That conduct demonstrates that the practitioner has a complete lack of integrity, had engaged in conduct of that kind for an extended period and is a person who clearly could not command the personal confidences of his clients, fellow practitioners or judges. Put another way, this is a case where conduct of a practitioner showed a defect of character incompatible with membership of the profession.”

Across all devices seized by police, Mr Mizen was in possession of 17,544 images and 1,391 videos containing child exploitation material, but the case was centred on the material found on a USB hard drive and an external hard drive – respectively, they contained 35 images and 90 videos, and 1,413 images and 230 videos. 

Under the Child Exploitation Material Sentencing Scheme, the videos were characterised from anywhere between category one – depictions of children involving nudity, underwear, sexually suggestive poses, genital areas and solo urination – and charge five, which consists of sadism, bestiality and child abuse. 

The sentencing judge described the category five images as being “particularly significant… both in terms of their level of depravity but also in terms of the pain that can be seen on the children who are depicted”. The judge added the images were not fake and that the images were “highly pervasive, depraved and showed images which depicted real punishment and pain suffered by these children”. 

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The sentencing judge added that while the practitioner had not engaged in any physical abuse of children, his interest and conduct enabled that physical abuse to receive a market and fuelled the demand for the production of that type of material. Mr Mizen was said to not have any significant indication of remorse. 

“There is no doubt that the conduct which constituted those offences constitute professional misconduct, in that while it was conduct which occurred otherwise than in connection with the practice of law, it was conduct which undoubtedly justifies a finding that the practitioner is not a fit and proper person,” the tribunal found. 

The judgment can be found on AustLII: Legal profession complaints committee and Mizen [2021] WASAT 80 (2 June 2021).

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