Health Ombudsman v Esposo[2025] QCAT 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONSFOR DECISION

1. [1]
   This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Sarah Regina Esposo (‘respondent’) who, at the relevant time was a registered psychologist. She was convicted of the offence of misconduct in relation to public office – a public officer doing an act or making an omission in abuse of authority of office pursuant to section 92A(1)(c) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’).
2. [2]
   The matter was dealt with in the District Court of Queensland at Brisbane on 8 December 2023. At all material times, the respondent was not acting in her capacity as a practising psychologist.

Background to the referral

3. [3]
   The respondent’s date of birth is 6 January 1982. She first obtained general registration as a psychologist on 12 August 2010 with the Psychology Board of Australia (‘Board’). Since the conduct that brought the respondent before this Tribunal and before the District Court of Queensland, the respondent elected not to renew her registration when it was due for renewal on 30 November 2021. As a consequence, her registration lapsed on or about 4 January 2022.
4. [4]
   The respondent commenced employment with the Department of Education on or about 29 November 2010 and was employed as a Principal Statistical Officer at the time of her criminal conduct. As a consequence of that conduct, the respondent was suspended from her employment, with remuneration, on 8 June 2018. On 19 September 2019, her suspension was changed to suspension without remuneration. Subsequently the respondent resigned from her role within the department on 7 May 2024. Notwithstanding her resignation, she was subject to a post-separation disciplinary finding of termination of employment on 11 June 2024.

The conduct that is the subject of the referral

5. [5]
   In this proceeding, the applicant seeks the following findings and orders:

   1. that the respondent has behaved in a way that constitutes professional misconduct;
   2. that the respondent be reprimanded;
   3. that the respondent be disqualified from applying for registration as a psychologist under the Health Practitioner Regulation National Law (Queensland) for a period of six months; and
   4. there be no orders as to costs.
6. [6]
   By reference to the Statement of Agreed Facts, there are really no material factual matters in issue. The real issues to be resolved centre around what findings and orders ought to be made given the agreed factual background. In this regard, it is contended on behalf of the respondent as follows:^[1]

The respondent:

1. concedes that there ought to be a finding that she has engaged in unprofessional conduct;
2. submits that her conduct does not warrant a finding of professional misconduct;
3. concedes that she ought to be reprimanded;
4. submits that no further sanction ought to be imposed;
5. joins the applicant’s submissions that there ought to be no order as to costs.

7. [7]
   On or about 8 December 2023, the respondent was charged with one count of fraud as an employee in relation to the sum of $30,000 or more. That charge levelled against the respondent, was withdrawn by the Director of Public Prosecutions by way of a nolle prosequi. On 8 December 2023, in the District Court of Queensland before his Honour Judge Smith (as he then was), the respondent entered a plea of guilty and was convicted of one count of misconduct in relation to public office pursuant to section 92A(1)(c) of the Criminal Code.
8. [8]
   The respondent was sentenced to three years’ imprisonment, wholly suspended with an operational period of three years. The respondent was one of three offenders. In dealing with the respondent, the learned sentencing judge summarised the relevant facts and circumstances as follows:^[2]

The facts of the case are involved, and I read the statement of facts carefully and I have had regard to that. …you were a public officer employed by the Department of Education. Mr Roland Simons was also employed by the department as a director and employee of the department. He and you were required to disclose your personal interests which might influence the performance of your duties. The offending was primarily committed by Mr Simons… From April of 2015, the Department of Education conducted a review of the School Opinion Survey. At about the same time, a business called School Measures was set up. This involved you and Simons… Ms Kho, the third offender, your sister, was recruited to the business by you and she was the face of the business. There is no doubt that there was an actual conflict of interest here and your involvement and Simons’ involvement in this business ought to have been disclosed. Now, from October 2015 until June 2018, Simons engaged primarily in a course of conduct which involved promoting School Measures to various people within and outside the Department of Education… You became aware only from 6 April 2017 that Simons intended to pursue a remunerative contract with the department. You failed to declare your conflict of interest from that date and aided him in his endeavours.

Having said that, your role was very minor, in my opinion… and that is that you had knowledge of the promotion of the business, you were kept informed by [Simons] of the actions undertaken, and your active role was to contribute promotion ideas and produce survey content.

9. [9]
   His Honour went on to say:^[3]

As the Crown submits, you are liable under section 7(1)(c) of the [Criminal] Code. Ms Kho was also a party to this count, as she did not work for the department, but of course she also had the fraud count, which carried a higher maximum. Having said that, your role in the department raises issues of breaches of trust and issues of honesty, but that needs to be balanced against the extra count for Kho and the actual receipt of money. …The offence carries seven years imprisonment. I agree with the Prosecution the conduct involves a breach of trust and it is crucial that those working for the Government in public office are honest. Ultimately, this is all taxpayers’ money we are concerned about and society is adversely affected by this conduct.

10. [10]
    His Honour also went on to say:^[4]

It is a touch and go case, actually, that is really serious because of the statements of principle here. But at the end of the day, I agree that imprisonment is not mandatory, although usual, I would think, because of the mitigating factors stressed by Mr Ryan in oral submissions, your absence of previous convictions, the plea of guilty, your limited role – if it had been more active, if you were a principal, you would be going to jail, no doubt, today for quite some time...

11. [11]
    During the sentencing proceedings, references were tendered which spoke very highly of the respondent and also referred to the fact that her criminal conduct was entirely out of character. In this regard, Dr Neralic a clinical psychologist, prepared a report on 13 November 2023 and made the following observations:^[5]

Significantly around the period of time related to her case, both parents became ill, and died suddenly. First her father entered a nursing home in early 2016, then in December 2016 her mother became severely ill, went into hospital, and remained there until her death a few weeks later.

A few weeks after her mother died her father also died. Sarah said the vigilant care and responsiveness required to support both parents over this period was highly stressful, and the grief of both losses in a short period was emotionally overwhelming.

12. [12]
    Later in the report Dr Neralic stated:^[6]

It’s also likely that due to both her parents[’] deteriorating health, Sarah’s high emotional state and the subsequent grief from losing both mother and father within several weeks of each other affected her capacity for clear and rational thinking. Long and unusual states of stress and emotional overwhelm can making (sic) access to higher order thinking difficult and unreliable.

13. [13]
    By way of opinion, Dr Neralic expressed the following views:^[7]

In my opinion, the consequences of coddled parenting and the cultural value of obedience meant Sarah entered and remained throughout her adulthood naïve, and inexperienced in recognising how people with authority can abuse this power. This conditioning meant that she was vulnerable to subjugating her own authority (i.e. to Roland Simons), accept the status quo, and subsequently making it extremely difficult to assert and act on her thoughts and objections.

14. [14]
    In that regard, the respondent had expressed, on a number of occasions, her reservations about the conduct overall and in particular that of Simons.
15. [15]
    In respect of that report, the learned sentencing judge, in part, said:^[8]

… the report from Ms Neralic… shows that you have undergone much counselling and talks about your involvement with that and stresses the relationship with Mr Simons. You blindly trusted him and he seems to have been a pretty manipulative individual, I form the view, and manipulated you as well. And I note that in [Ms Neralic’s] opinion, the consequences of your parenting and cultural values had an impact on your blind obedience to Mr Simons, effectively.

16. [16]
    Obviously this highly intelligent and educated woman has been living under the cloud of her criminal conduct since no later than July 2019. Of course her criminal conduct was a matter of her own making. However, having regard to the delays in having her criminal proceedings finalized it is not surprising that the learned sentencing judge saw the issue of delay as a mitigating factor. It should also be observed, though, that the period of delay has provided the opportunity for the respondent to be able to show that she has now rehabilitated herself.

Characterisation of the conduct

17. [17]
    Turning then to the characterisation of the respondent’s conduct. Counsel on behalf of the respondent, at least as far as the Tribunal understands it, is submitting that a finding of unprofessional conduct rather than professional misconduct can be justified on a number of grounds. These include:

    1. the respondent’s role in the scheme of things was minor, and she received no personal financial advantage from the scheme;