Health Ombudsman v Salmon[2024] QCAT 426

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Liam James Glenn Salmon (‘respondent’).  At all material times, the respondent held general registration as a nurse.  At the time of the conduct that brings him before this Tribunal, he was a 21-year-old male who had no previous criminal convictions.
2. [2]
   On 23 June 2022, the Queensland Police notified the Office of the Health Ombudsman that the respondent was being investigated for an offence involving the possession of child exploitation material.  On 24 July 2022, he was charged with one offence of transmitting to himself child abuse material by using a carriage or service.  On 31 July 2023, the respondent was convicted on his own plea of guilty in the Southport District Court to one count of using a carriage service to transmit child abuse material to himself.
3. [3]
   On 8 March 2022, the respondent transmitted six files depicting child abuse material via Facebook Messenger between two accounts used by him.  Five of the images were of prepubescent females with clear focus on their exposed genitals, and one image depicting a young female engaged in sexual activity with a prepubescent female.  On 24 July 2022, after coming to the attention of the Queensland police, a search warrant was executed.  At the time of the execution of the search warrant, he said that he had no sexual interest in children and that he had received the files approximately 10 years ago.  At the conclusion of the search, the respondent was arrested and charged.  During the interview with police, he was shown the images and agreed that they were ones he had transmitted. 
4. [4]
   On 31 July 2023, the respondent was convicted on his own plea of guilty in the Southport District Court to one count of using a carriage service to transmit child abuse material to himself.  He was sentenced to two years good behaviour and probation, and $1000 recognisance.  A conviction was recorded.
5. [5]
   The conduct on the part of the respondent, notwithstanding that it fell at the lower end of such offending, is still conduct that amounts to a serious departure from the professional standards expected from a registered nurse and the principles underpinning the relevant code of conduct for that profession.  In the Health Ombudsman v Franklin,^[1] the practitioner involved was a registered podiatrist who had accessed child exploitation material images on a website on 2211 occasions.  On being satisfied that the conduct satisfied all three limbs of professional misconduct, the Tribunal observed:^[2]

The criminal offending by the respondent was very serious offending.  As the courts have noted on many occasions, the obtaining and possession of child exploitation material is not a victimless crime.  Indeed, behind every image lies a child who has been violated to produce such material.  The dissemination and viewing of such material repeats such violation of the victim and provides and encourages a market in such images, which has the consequences of the violation of new victims.  Criminal conduct of such a type is completely inconsistent with the fundamental obligation of health practitioners to help people, rather than hurt them.

6. [6]
   In the Health Ombudsman v XPW (‘XPW’),^[3] the Tribunal commented that the practitioner engaged in professional misconduct as defined in limbs (a) and (c) of the definition, and went on to observe:

Although the number of such images were small and their content at the lower scale of seriousness, behind every image lies a real child whose degradation is continued by such behaviour.

7. [7]
   In the present matter, the applicant sought the following findings and orders: 

   1. The conduct of the respondent in allegation 1 constitutes professional misconduct, pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’);
   2. Pursuant to section 103(a) of the HO Act, the respondent be reprimanded;
   3. Pursuant to section 107(4)(a) of the HO Act, the respondent is to be disqualified from applying for registration as a health practitioner for a period of four years;
   4. There be no order as to costs.
8. [8]
   In general, the Tribunal agrees with those findings and orders, save for that by reference to the cases referred to the Tribunal, the period of disqualification for applying for registration should be three years and not four years.  In this instance, the respondent has not practised in nursing in any capacity since his registration lapsed on 31 May 2022.  He is currently employed as an assistant manager at a Hungry Jacks restaurant.  It should be observed that apart from agreeing to a statement of facts, the respondent has not otherwise participated in these proceedings.
9. [9]
   There were a number of mitigating circumstances that the learned sentencing Judge took into account when imposing the sentence, including: 

   1. the respondent had been recently diagnosed with a learning disorder;
   2. the respondent suffered tics which became more pronounced following a workplace allocution in 2021;
   3. the respondent suffered from anxiety, depression, panic attacks, suicidal ideation and loss of executive functioning;
   4. the respondent showed symptomology consistent with a dissociative disorder;
   5. there was evidence of post-traumatic stress disorder; and
   6. it was opined by the psychologist who assessed the respondent that he represented a low risk of reoffending.
10. [10]
    These circumstances, together with the relatively low level of offending, the relevant youth with the respondent, together with him having no previous criminal history, led the sentencing Judge to conclude that there were exceptional circumstances peculiar to the respondent.  Such a finding meant that a period of custody was not obligatory.
11. [11]
    Quite correctly, on behalf of the applicant, it was submitted that deterrence, both personal and general, looms large in cases such as this.  In this regard, the applicant referred the Tribunal to a number of cases described as being “comparative cases”.  Those cases were:

    1. Health Ombudsman v YDU (‘YDU’);^[4]
    2. XPW;
    3. Health Ombudsman v Mak;^[5]
    4. Health Ombudsman v Creagh-Scott;^[6] and
    5. Health Ombudsman v Asinas; Asinas v the Medical Board of Australia.^[7]
12. [12]
    The facts and circumstances surrounding each of those cases are summarised in the applicant’s written submissions, and each of those cases has been considered by the Tribunal.  The Tribunal, however, feels that because of the reasons given in YDU, none of the other cases require further comment.  In respect of that case, it was said on behalf of the applicant:^[8]

YDU is the most like the present case but involved more serious conduct.  There, a registered nurse was convicted on his own pleas of one count of possessing or controlling child abuse material, one count of use of a carriage service to transmit child pornography material and one count of using a carriage service for child abuse material.  He was sentenced to 15 months’ imprisonment, wholly suspended, and two years’ probation.  Convictions were recorded.

He emailed child pornography between his two email accounts a total of 30 times.  On his devices, authorities found 715 images of child exploitation material depicting prepubescent and pubescent female children aged from 6 to 15.  The images located on his phone were hidden in a folder.

The Tribunal reprimanded the practitioner, cancelled his registration and disqualified him from applying for registration for three years, imposing an effective exclusion from the profession of five years, having regard to his two-year suspension from practice before the hearing.  He showed insight and remorse and had engaged in treatment to address risk factors identified in a psychological report.

13. [13]
    On balance, having regard to the facts and circumstances surrounding this matter and those involved in the reasons given in YDU, the Tribunal has reached the conclusion that while the respondent is currently not a fit and proper person to hold registration, the period of disqualification ought not exceed three years.  Accordingly, the Tribunal makes the following findings and orders:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for three (3) years from the date of this decision.
4. No order as to costs.