Pharmacy Board of Australia v Sternes
[2015] QCAT 161
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- Unreported Judgment
- Pharmacy Board of Australia v Sternes[2015] QCAT 161
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Pharmacy Board of Australia v Sternes[2015] QCAT 161
Pharmacy Board of Australia v Sternes[2015] QCAT 161
CITATION: | Pharmacy Board of Australia v Sternes [2015] QCAT 161 |
PARTIES: | Pharmacy Board of Australia (Applicant/Appellant) |
v | |
Kenneth Leslie Sternes (Respondent) |
APPLICATION NUMBER: | OCR132-12 |
MATTER TYPE: | Occupational Regulation matter |
HEARING DATE: | 7 August 2013 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
DELIVERED ON: | 6 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – BOARDS, TRIBUNALS ETC. – whether conduct amounts to unsatisfactory professional conduct – where pharmacist convicted of indictable offences – where pharmacist engaging in highly sexualised conduct via internet and text messaging – where pharmacist believed recipient to be a 14 year old girl – where conduct upon which convictions relate amount to professional misconduct –where personal misconduct of such a serious nature as to be discreditable to the profession – whether pharmacist a registrant for the purposes of s 385A of the Health Practitioners (Disciplinary Proceedings) Act 1999 -where pharmacist not a registrant for purposes of s 385A of the Health Practitioners (Disciplinary Proceedings) Act 1999 Health Practitioners (Disciplinary Proceedings) Act 1999, s 123, s 124, s 385A, s 241 Health Legislation (Health Practitioner Registration National Law) Amendment Act 2010, s 58 Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010 Pharmacists Board of Queensland v Gordon [2010] QCAT 181. Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528. |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr A Forbes of DLA Piper Australia |
RESPONDENT: | In person |
REASONS FOR DECISION
- [1]Kenneth Leslie Sternes was formerly a registered pharmacist. His registration lapsed on 30 November 2010. He has not held registration since that time.
- [2]The Pharmacy Board of Australia referred disciplinary proceedings against Mr Sternes to the Tribunal in which it relies upon 3 grounds for disciplinary action against him. Each relates to Mr Sternes’ conviction on 8 counts of using the internet to expose a child under the age of 16 to an indecent matter and 1 count of using a carriage to groom a person under 16 years of age.
- [3]He was convicted of these offences on 19 November 2010 after a 4 day trial. On 28 March 2011 he was sentenced to 27 months imprisonment on the count of using a carriage service to groom a person under 16 years of age. He was directed to be released after serving 13 months in prison to be of good behaviour for 3 years. On each of the 8 other counts he was sentenced to 8 months imprisonment to be suspended after 4 months for an operational period of 3 years. All sentences were concurrent.
Mr Sternes’ Conduct
- [4]The conduct which led to the charges involved Mr Sternes engaging with a person who was actually a law enforcement participant, but who had posed as a 14 year old girl called “Cassie”, via the internet and by text messaging. The conduct occurred on numerous occasions between 7 January 2009 and 25 February 2009. His conduct was highly sexualised. It included: engaging in highly sexualised chat; broadcasting images of his penis; encouraging and coaching “Cassie” to masturbate; stating that he wished to have sexual intercourse with her and describing the process; encouraging “Cassie” to send a naked photograph of herself to him; stating that he wished to meet with “Cassie” so that he could engage in sexual acts with her; arranging but later cancelling a meeting; expressing remorse at being unable to keep the meeting.
- [5]It was alleged that the images which he broadcast to “Cassie” included images of him masturbating. Mr Sternes admits that the images which he sent on those occasions depicted him holding his penis; but denies that they were images of him masturbating because at the time he was unable to maintain an erection due to a number of medical conditions.
- [6]Mr Sternes says that he never believed that he was communicating with a 14 year old girl. Rather, he thought that he was communicating with a homosexual man posing as a young girl.
- [7]He denies that the image sent to him was of a juvenile girl because the law enforcement participant stated in committal proceedings that the image was of the breasts of an adult woman. That is hardly the point. He solicited the sending of the image from a person who was, for all intents and purposes, a young girl.
- [8]Whilst he admits describing a vehicle registered to himself and his wife in arranging a meeting with “Cassie”, he says that it was not a vehicle which he drove and that the meeting place was one suggested by the law enforcement participant and was not known to him. He says that he had no interest in attending the meeting.
- [9]He says that his conduct was a one off aberration which he engaged in when depressed in the context of the breakup of his marriage. He was 59 years old at the time.
- [10]He says that he is truly remorseful for his actions having severely embarrassed himself, his family and his profession. Notwithstanding that remorse, however, his insistence that he did not believe himself to be talking to a 14 year old girl leaves some residual concern as to his level of insight.
The Disciplinary Grounds
- [11]The first ground for disciplinary action upon which the Board relies is that Mr Sternes has been convicted of an indictable offence. Such a conviction is a ground for disciplinary action by section 124(1)(i) of the Health Practitioners (Disciplinary Proceedings) Act 1999.[1]
- [12]This ground is established.
- [13]The second ground is that by engaging in the conduct upon which the convictions were based Mr Sternes has behaved in a way that constitutes unsatisfactory professional conduct within the meaning of s 124(1)(a) of the Disciplinary Proceedings Act, in that the conduct was discreditable to Mr Sternes’ profession and was otherwise improper or unethical conduct. Mr Sternes admits that he has engaged in unsatisfactory professional conduct.[2] He admits that his conduct was improper.[3] Whilst in his response to the referral he did not admit that his conduct was discreditable to his profession,[4] he later submitted that he understood that his actions amounted to professional misconduct.[5]
- [14]In my view, when the full extent of his behaviour is considered, the conduct of Mr Sternes which led to his convictions for the criminal offences, although not associated with the practice of his profession, was personal misconduct of such a serious nature as to be discreditable to the profession.
- [15]The second ground is established.
- [16]The third ground upon which the Board relies is that Mr Sternes has failed to comply with section 385A of the Disciplinary Proceedings Act which required him to give notice of his convictions for the indictable offences to the Board within 30 days after the convictions. Failure to comply with provisions of the Act is a ground for disciplinary action under section 124(1)(f).
- [17]Mr Sternes says he was unaware of this obligation, but sent a letter as soon as he was able in May 2011. The Board says that it does not have a copy of any such letter. In any event, the Board submits that ignorance of this obligation is not an excuse for failure to comply, and that even if a letter was sent in May 2011 it was not in compliance with section 385A given that the convictions were in November 2010.
- [18]In my view, this ground is not established. The Board’s case concerning it proceeds on a misconception of the law. It is understandable that Mr Sternes, representing himself in these proceedings, did not appreciate this misconception on the Board’s part and focused upon his lack of knowledge of what he assumed to be an obligation.
- [19]Section 385A applies if a “registrant” is convicted of an indictable offence. A “registrant” was defined by the, then, Professional Standards Act at the relevant time to mean a person registered under a “Health Practitioner Registration Act”. From 1 July 2010 a “Health Practitioner Registration Act” meant any one of the Dental Technician Registration Act; the Medical Radiation Technologists Registration Act 2001; the Occupational Therapists Registration Act 2001; or the Speech Pathologists Registration Act 2001.[6]
- [20]Whilst section 9 of the Disciplinary Proceedings Act permits disciplinary proceedings to be brought against a person who is no longer registered, for conduct which occurred during a period of registration, as though the person was still a registrant, that does not extend the meaning of “registrant” as used in section 385A. The obligation imposed by section 385A, for which it is an offence not to comply, is upon persons who were at the relevant time “registrants”, not persons who were former registrants.
- [21]At the time of his conviction on 19 November 2010 Mr Sternes was not a registrant for the purposes of section 385A.
- [22]The obligation under section 385A is to give notice of the conviction to the “registrant’s board” within 30 days. A “registrant’s board”, for a registrant, means the board established under the Health Practitioner Registration Act under which the registrant is registered. There was no such board for Mr Sternes at the relevant time. The Pharmacy Board of Australia was not established under a Health Practitioner Registration Act; but under s 31 of the National Law. The obligation did not apply to him.
- [23]The registration acts of other health professions, including the Pharmacists Registration Act 2001, were no longer within the definition of a “Health Practitioner Registration Act”. This was to give effect to the national scheme of registration for practitioners in those health professions which were, from 1 July 2010, governed by the National Law. The explanatory notes for section 58 to the Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010 make that plain. They say:
“The definition of “Health Practitioner Registration Act” differs from the definition inserted by the schedule to the Bill into other Acts consequently amended, in that it catches up Queensland Registration Acts only (and not the National Law). This is consistent with the intent of the amendments the Bill makes to the Professional Standards Act, and has the effect that those parts of the Act which are expressed to operate in relation to matters under Health Practitioner Registration Acts apply to state registered professions only.”
- [24]The third ground must be dismissed.
Sanction
- [25]In deciding to take action under section 241 of the Disciplinary Proceedings Act, two grounds for disciplinary action having been made out, the Tribunal must have regard to the purposes of disciplinary action mentioned in section 123 of the Act. Those purposes are to protect the public, to uphold standards of practice within the health professions and to maintain public confidence in health professions.
- [26]As was observed by Deputy President Kingham in Pharmacists Board of Queensland v Gordon[7] the fact that under the Disciplinary Proceedings Act conviction of an indictable offence establishes a ground for disciplinary action, regardless of the nature of the offence, implies that such a breach of the criminal law brings into question the professionalism of the registrant and, accordingly, public confidence in the profession.
- [27]The cases reflect that even where the offence committed by a registrant is not associated with the practice of his or her profession, a period of exclusion from the profession is appropriate. It acts as a deterrent to others and promotes public confidence in the profession.
- [28]In Gordon, the Pharmacist was convicted of offences relating to downloading and possessing child exploitation material. There were 3 counts. They involved in excess of 3000 images of more than 1000 children. The images spanned a range of child pornography from images depicting erotic posing and no sexual activity, to sadistic sexualised violence. Mr Gordon was sentenced, on 2 of the counts, to 12 months imprisonment but released immediately on $100 recognisant to be of good behaviour for 3 years and, on the further count, 12 months imprisonment wholly suspended for a period of 3 years. Assuming that Mr Gordon was of good behaviour, he would not have served any actual time in custody.[8]
- [29]In my view, the offences committed by Mr Sternes were considerably more serious. He engaged with a person who purported to be a girl of 14 (even though he says that he never considered that to be the case). He encouraged her to masturbate; discussed having sex with her; made arrangements by which that might happen; solicited a naked image of her to be sent to him; and sent pornographic images of himself, whether masturbating or otherwise. The sentence imposed upon him was considerably more severe than that imposed upon Mr Gordon which, in my view, also reflects that his offending was of a worse kind.
- [30]Mr Gordon had ceased practice voluntarily in May 2008. The Tribunal, in April 2010, imposed an order that he not be able to apply for registration for a further period of 2 years. The overall effect was exclusion from the profession for a period of 4 years.
- [31]Medical Radiation Technologists Board of Queensland v Groves[9] was also a case which concerned a practitioner guilty of possessing child exploitation material. Police located on his computer 2634 images. Again, the material ranged from sexualised posing with and without nudity to images depicting sexual acts between children and adults. The images had been downloaded from an internet site to which Mr Groves paid a monthly access fee. He too had been sentenced to a wholly suspended period of imprisonment of 12 months. Again, in my view, this reflects that Mr Sternes’ offending was more serious.
- [32]The Tribunal considered that Mr Groves’ case was to be distinguished from Gordon. His conduct was considered to cast doubt on whether he was genuinely remorseful. He had taken a cavalier attitude to the proceedings in the Tribunal and had failed to comply with a Tribunal order to undergo a health assessment. It was also considered that being a medical radiation technologist his profession involved unsupervised conduct with patients, whereas such was unlikely for a pharmacist in the case of Mr Gordon.
- [33]The Board had sought a further exclusion period of 2 years and 6 months. Mr Groves had been registered in February 2007 when he committed the offence, but was not registered by the time he was convicted in November 2008. However, the precise date upon which he ceased to be registered was not clear. Notwithstanding the Board seeking a further exclusion period of 2 and a half years, the Tribunal, in October 2010, imposed a further exclusion period of 3 years and 6 months. It is unable to be ascertained with certainty, but the total period during which Mr Groves was excluded from the profession would have been in excess of 5 and a half years.[10]
- [34]In my view, a period of exclusion of Mr Sternes from the profession for up to 5 years would have been appropriate in this case. That would have permitted his return from November 2015. The Board had sought a period of exclusion of a further 1 year which would have taken the total period of exclusion to just under 4 years. That period would now have passed due to an unfortunate delay in the Tribunal concluding this matter.
- [35]Dr Holm, Mr Sternes treating psychiatrist, is of the opinion that Mr Sternes is capable of returning to practice as a pharmacist safely and competently.
- [36]Given those circumstances, and notwithstanding that an overall period of exclusion of up to 5 years would have appropriate, the Tribunal will not impose any further period during which Mr Sternes is unable to reapply for registration.
- [37]He will be reprimanded.
- [38]The Board seeks a condition be imposed upon any future registration of Mr Sternes that he participate in 4 counselling sessions over a period of 1 year from the date of registration conducted by a pharmacist or professional ethics advisor approved by the Board. The purpose of the counselling sessions being to develop and reinforce Mr Sternes understanding of professional responsibilities and reputation and the implications of personal conduct for professional reputation and public confidence in the profession. Such a condition on future registration is supported by section 243(2)(b)(iii) of the Disciplinary Proceedings Act. A condition to that effect was imposed by the Tribunal in Gordon. It is appropriate in this case also.
Costs
- [39]The Board seeks its costs. Mr Sternes opposes such an order, essentially due to his impecuniosity. His circumstances are unfortunate, but no doubt a consequence of his conduct.
- [40]It is appropriate for the Board to have its costs. It is funded, at least in part, by the contributions of members of the profession of good standing. It brings proceedings such as these pursuant to its statutory functions for the protection of the public and the reputation of the profession. It should be compensated for the cost of doing so.
- [41]Mr Sternes shall be ordered to pay the Board’s costs as agreed or assessed on the standard basis for matters in the District Court of Queensland.
Footnotes
[1] Previously the Health Practitioners (Professional Standards) Act 1999.
[2] Statement of agreed facts at [40].
[3] Ibid at [41].
[4] Mr Sternes said that his conduct was not “discernable” to the profession, but it is clear that he was responding to the allegation that it was discreditable to the profession.
[5] Respondents submissions at paragraph 3(c).
[6] Health Legislation (Health Practitioner Registration National Law) Amendment Act 2010; s 58.
[7] [2010] QCAT 181 at [11].
[8] An appeal by the Director of Public Prosecutions against the sentence being manifestly inadequate was dismissed: R v Gordon; ex parte Commonwealth DPP [2009] QCA 209.
[9] [2010] QCAT 528.
[10] The Board’s submissions state the period of exclusion to be 5 years and 7 months, but as the date upon which he ceased to be registered is unclear, it may have been longer than that.