Ha v Pharmacy Board of Victoria [2002] VSC 322

Supreme Court of Victoria|2002-08-14|Before: GILLARD J.

APPEAL FROM PHARMACY BOARD - Nature of Appeal - Penalty - Object of penalty - Appeal allowed.

This is an appeal by a pharmacist against a penalty imposed by the Pharmacy Board of Victoria, consequent upon a finding by the Board that the pharmacist was guilty of conduct discreditable to a pharmacist.

He came to Australia, arriving in Melbourne in 1981, understanding and speaking very little English.

He educated himself as a mature student at a high school, attended the Pharmacy School and graduated as a pharmacist in 1988. He commenced employment as an employee pharmacist in Keilor Downs, eventually becoming a manager and then commencing his own business at the Prahran Central Shopping Centre in mid-1998.

The respondent to the appeal, the Pharmacy Board of Victoria ("the Board"), is a body created by the Pharmacists Act 1974 (s.4), and by s.18 of the said Act, it may inquire into the conduct of a pharmacist and if satisfied of any of a number of specified offences, may impose one or more of a number of penalties set out in the section.

On 19 December 2001, the Board resolved to inquire into the conduct of the appellant pursuant to s.18 of the Act.

It was alleged against the appellant that he was guilty of discreditable conduct in that he indecently assaulted two young women.

The alleged misconduct was specified as follows -

That he advertised in November 2000 in the window of his pharmacy at Prahran Central for a junior pharmacy assistant, and in response to the advertisement received two applications, and that he interviewed each of the applicants and contrary to s.39(1) of the Crimes Act 1958 he did -

(i) between 4 and 14 November 2000 indecently assaulted Miss X;

(ii) on 19 November 2000 indecently assaulted Miss Y;

(iii) on the same day further indecently assaulted Miss Y.

At the time, Miss X was aged 14 years and Miss Y was aged 20 years.

The inquiry came on for hearing on 22 January 2002.

The appellant was represented by Mr Thomas of Counsel, and Mr Albert of Counsel appeared to assist the Board.

An agreed statement of facts was placed before the Board. In addition, various other documents were placed before the Board, including statements of evidence, a transcript of a police interview, two victim impact statements and reports from a number of doctors and a forensic psychologist. In addition, there were a number of good character references.

During 2001, the appellant was charged with a number of charges of indecent assault. They came on for hearing on 20 July 2001 at the Magistrates' Court at Melbourne, where he pleaded guilty to the charges, which were the same as the allegations of misconduct before the Board.

The Magistrates' Court convicted him and he was given a suspended sentence. On 28 November 2001, he appealed to the County Court, his appeal was upheld and in substitution for the penalties, the following penalties were imposed -

(i) In respect of the charge of indecent assault on Miss X, the appellant was fined $1,500 without conviction;

(ii) and (iii) In respect of the two charges of indecent assault on Miss Y, he was sentenced without conviction to a community based order for two years on the conditions that -

(a) he performed 150 hours of unpaid community work within 12 months;

(b) underwent psychological or psychiatric treatment and assessment as directed;

(c) continued to be treated by Dr Philip Wood (psychiatrist).

The orders made by the Magistrates' Court and the County Court on appeal were before the Board on the inquiry.

The Board found each of the acts of misconduct proven, noted that his conduct was the subject of criminal charges to which he had pleaded guilty, and was satisfied that his conduct constituted discreditable conduct as a pharmacist pursuant to s.18(3)(e) of the Act.

In handing down the penalty, the Board stated that it was dismayed and alarmed at the charges of indecent assault on two prospective employees, that they took place in a closed room at the pharmacy, that pharmacists enjoyed the respect of the community, and that it was a privileged position which brought with it rights and responsibilities. In arriving at the appropriate penalty, the Board took into account the court proceedings, including the appeal to the County Court, and also his past history, relationships and the high stress level existing at the time of the offences, partly induced by working long hours. The Board also took into account the evidence of two psychiatrists and a psychologist.

(a) He was reprimanded in the strongest possible terms for his conduct;

(b) he was required to pay the costs of the inquiry of $5,994.10;

(c) his registration as a pharmacist was suspended for a period of three months from 22 March 2002;

(d) that the following conditions, limitations and restrictions on his practice were imposed until 27 November 2003, namely -

(i) to abstain, in his place of practice from being alone with a member of the public in a private area unless a clear unobstructed view of that area was available or another person was present; and

(ii) limit his practice as a sole pharmacist to not more than 40 hours per week.

The Appeal

On 14 February 2002, the appellant lodged a notice of appeal with the Court pursuant to s.18(4) of the Act. By summons dated 21 February 2002, he sought a stay of the operation of the penalties imposed by the Board. No order was made. However, the parties agreed that there ought to be a stay of the operation of the penalties.

The appeal is an appeal by way of re-hearing de novo.

Section 18(5) provides -

"(5) The Supreme Court shall inquire into and decide upon the appeal by way of a re-hearing and for that purpose shall do all such matters and things relating therein in the same manner and to the same extent as it is empowered to do in the course of exercising the ordinary jurisdiction of the Supreme Court, and its decision shall be final and without appeal."

Speaking of a similar provision in the Medical Act 1958, Pape J in Mercer v Pharmacy Board of Victoria [1968] VicRp 9; [1968] VR 72 at 80, said -

"The duty of the Court in an appeal such as this is to inquire de novo into the questions involved and arrive at its own decision thereon upon the evidence which was given before the Board and which is now before the Court and the additional evidence which has been led in this appeal. The Court stands in place of the Board, so that it becomes the court's satisfaction that is required, and so that the discretions which were originally exercisable by the Board have to be exercised by the court in its place."

His Honour referred to a number of authorities to support that conclusion. I respectfully agree. But his Honour then went on to say this -

"Nevertheless, it must not be forgotten that this is an appeal, and that the court is bound to act in accordance with the established principles which were elaborated in Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212, Benmax v Austin Motor Co [1955] AC 370 and Re Hodgekiss [1962] SR (NSW) 340."

I would respectfully disagree with Pape J. The cases of Paterson and Benmax deal with the issue of findings of fact made by trial judges and the difficulties involved in interfering with a finding made based on credibility. The appeal is a re-hearing de novo. The Court is in no way bound by any evidence that was given in the inquiry, nor is the Court in any way bound by any findings made by the Board at the hearing or its decision.

Because it is a re-hearing de novo, the Court re-considers the matter afresh and the parties may adduce what relevant evidence they desire before the Court on the appeal. A practice has grown up in this State whereby the parties usually consent to the transcript of the evidence before the inquiry and exhibits being adduced into evidence on the appeal. This may sometimes present a difficulty if credibility is in issue. No doubt, the problem would have to be addressed and if necessary, some other approach would be adopted to deal with the issue.

In the present appeal, the parties agreed to adducing into evidence all the material which was before the Board. There was no issue of credibility. The evidence was supplemented by additional evidence called by the appellant and the Board.

In Aavlaid v The Dental Board of Victoria [1999] VSC 54, an unreported decision delivered 11 March 1999, I considered the nature of an appeal from the Dental Board of Victoria pursuant to the Dentists Act 1972.

Section 26(3) of that Act is in similar form to s.18(5) of the Pharmacists Act. One of the issues in that proceeding was the nature of the appeal, and after considering the authorities, I summarised, at paragraph 88, the principles concerning an appeal in the nature of a re-hearing under the section in the Dentists Act. In my view, the same principles apply to an appeal under the Pharmacists Act. I said -

"(i) The appeal is an appeal by way of rehearing de novo which means that the court is bound to consider the matter for itself after hearing all evidence placed before it.

(ii) It is open to the parties to consent to the form of evidence which could include all or parts of the transcript of evidence given before the tribunal but if the consent of both parties is not forthcoming, then admissible and relevant evidence will have to be called afresh before the judge on appeal.

(iii) As it is a rehearing de novo it is open to the parties on the appeal to place further and additional evidence to that called before the Board.

(iv) The reasons for the decision form part of the evidentiary material before the judge on the appeal and the weight that should be attached to the reasons will depend upon the particular circumstances of the case.

(v) A party may adduce in evidence before the court any evidence of admissions against interest which may be contained in the evidence before the Board."

It will be necessary hereafter to consider what weight should be given to the decision of the Board.

Neither counsel argued against the application of those principles to the present appeal.

One ground of appeal was stated in the notice of appeal.

"That the orders made were manifestly excessive."

In fact, the Board does not make any orders in respect of penalties but it makes a determination pursuant to a statutory power. It does have the power to make an order for costs - see s.18(3).

On the appeal, the appellant did not challenge the determination that he was guilty of conduct discreditable to a pharmacist but has appealed the penalties and the conditions, and the order for costs.

The evidence placed before the Court on the appeal comprised the agreed summary of facts which were before the Board; an affidavit by Mathew White, the solicitor for the appellant, affirmed 20 February 2002; a further affidavit affirmed by the said Mr White on 23 April 2002; and an affidavit of the Registrar of the Board, Stephen Marty, together with exhibits. In addition, a folder of documents which were before the Board was tendered.

In the material before the Board were a number of reports from medical practitioners and a forensic psychologist. They were -

(a) a report from a psychiatrist, Dr Philip R. Wood, dated 27 September 2001;

(b) a report from a psychiatrist, Dr Nathan Serry, dated 12 October 2001;

(c) a report from a forensic psychologist, Mr Ian Joblin, dated 13 July 2001.

Dr Philip R. Wood has been treating the appellant, and is the Dr Wood referred to in the conditions of the community based order.

Dr Serry was requested by the Board to provide a psychiatric report of the appellant.

The forensic psychologist, Mr Joblin, prepared a report for the court appearance.

I have carefully read those reports which, in my view, provide cogent evidence that the possibility of the appellant offending again is extremely remote. I will come back to these reports later.

In addition, the appellant filed an affidavit allegedly sworn 8 August 2002. The affidavit is not in proper form as it does not say that he took an oath but states that he did "solemnly and sincerely swear", the contents.

An affidavit must commence by stating that a deponent "makes oath". See Williams, Civil Procedure in Victoria, paragraph 43.01.50, and the authorities referred to. The Court does have power to permit an irregular affidavit to be used in evidence. See Rule 43.08. The Court was assured that the appellant did swear the affidavit after taking an oath on the Bible and accordingly, I granted leave to the appellant to use the affidavit in evidence.

The appellant placed evidence before the Court which was not before the Board at the inquiry. He set out in his affidavit the circumstances of his acquisition of his present pharmacy business at Prahran Central, and that he entered into a ten year lease, presently paying $11,617.35 in rental per month. He also provided evidence that he obtained, in effect, loans from the Westpac Banking Corporation in the order of $396,000 to purchase the business and equip and fit out the business premises.

He also gave evidence that he currently employs five individuals, four of whom are employed on a full-time basis.

None of that evidence was before the Board. It can be seen that a suspension of three months could have a disastrous effect upon his business because the suspension would preclude him from operating any pharmacy business. See s.21 of the Act.

The appellant also exhibited to his affidavit a medical report from a general practitioner, Dr Myer Brott, dated July 2001; a report in the form of a statutory declaration by a fellow pharmacist, Mr Paul Ching; and a progress report dated 24 July 2002 from the Community Correctional Services in respect to his compliance with the community based order.

It is a matter for this Court on the appeal to decide what is the appropriate penalty in all the circumstances.

In late 2000, the appellant advertised for a junior pharmacy assistant in the window of his pharmacy.

Miss X enquired about the position in early November 2000. At that time, she was aged 14 years. There is some dispute as to whether she told the appellant her age and that she was not attending school. There is some suggestion that Miss X lied about her age.

Miss X attended the pharmacy on a Sunday when it was open for business, and the appellant took her into the beautician's room, shut the door behind him, clicked the lock above the handle and told Miss X that he had to have a serious talk with her. He motioned her to sit on a bed in the room.

The appellant then asked her about whether she took drugs and he stated he wanted to check her elbows for needle marks. She allowed him to do this. He told her he wanted to check further up her arm. He asked her to lift up her top and he grabbed her jumper and lifted it up. As he did this, he touched the side of her breast on her bra at which point she grabbed her jumper, pulled it down and stated that there was nothing there to see.

The appellant told her that there were other places she might inject and referred to her bottom. Miss X said, "No, she did not". The appellant insisted, so she pulled down the top of her pants a small way to show there were no marks. He patted her buttocks over her pants. He stated he wanted to see around the area which he had patted. The appellant then grabbed the top of her pants, attempted to pull them down, she resisted and pulled them up, and stated there was nothing to see. The appellant replied that he was "just making sure". Miss X then pushed past him, unlocked the door and walked out.

The appellant showed her around the pharmacy and told her that she had a job.

She worked for a few days but then left. There was some dispute as to the reason why she left.

When initially interviewed by the police, the appellant denied that he asked to check her body and further stated that he did not check her body.

Miss Y enquired about the position at the pharmacy in mid-November. She was aged 20 years and was on a Methadone programme which was dispensed from another pharmacy. She attended on a Sunday and told the appellant that the father of her young daughter had a drug problem and that she left him because of that.

The appellant told Miss Y that he had to ask her about drugs because of the pharmacy business and his concern about drugs being stolen.

It would appear that Miss Y did not tell the appellant that she was on a Methadone programme.

The appellant told her that he wanted to check her arms and other areas for needle marks and would do the check in the beautician's room for privacy.

She went into the room, sat on the bed and the appellant asked her to pull up her sleeves, which she did. He checked her arms.

The appellant then asked to see her back, neck, chest and thighs. Miss Y unbuttoned her shirt, showed some of her bra, and he poked the skin at the top of her chest above the breasts but did not actually touch her breasts. The appellant then said he had to check her legs and he squatted in front of her and checked her ankles and legs, and he poked and prodded her legs.

He then said he had to check her thighs and bottom and he asked her to pull her skirt up, which she partly did. Eventually, she did pull up her skirt until the skin of her buttocks were exposed.

The appellant then stated that if she was uncomfortable, he would leave the room to enable her to remove her underpants, which she did. Upon his return, he assured her that he had to check for needle marks.

Miss Y held the blanket between her legs so that he did not see her vagina, but the appellant asked her to move her legs to enable him to prod around the top of both her thighs and buttocks right to the crack of her bottom.

He pulled and prodded the skin around her genital area but did not touch her vagina. He did push his fingers into the crease of her buttocks.

Miss Y felt uncomfortable and embarrassed but the appellant kept assuring her that what he was doing had to be done for a legitimate purpose.

He then left the room. He later returned and said that she did not have the job.

Miss Y then left the pharmacy and went to the pharmacy where she received her Methadone. After talking with a number of pharmacists, she came to the view that the appellant was not checking her for any legitimate purpose.

The appellant was eventually interviewed by the police. He asserted that he did not check Miss Y anywhere other than on her arms.

As stated above, the appellant pleaded guilty to three charges of indecent assault and was given a suspended sentence on 20 July 2001. On appeal, he was fined $1,500 without conviction in respect of the indecent assault on Miss X, and with respect to the two charges of indecent assault on Miss Y, he was sentenced without conviction to a Community Based Order for two years upon certain conditions.

Upon making a finding that a pharmacist has been guilty of conduct discreditable to a pharmacist, the Board has at its disposal a range of penalties. The Board may impose one or more of a number of specified penalties, namely, reprimand, requiring payment of the costs of any inquiry by the Board concerning the conduct, requiring a pharmacist to give an undertaking, imposing a fine not exceeding 25 penalty units, suspending the registration for a period not exceeding one year, or cancelling the registration. In addition, the Board is empowered to impose conditions, limitations or restrictions on the practice of the pharmacist and it also has power to make an order as to costs.

It is now the function of the Court on the appeal to determine what is the appropriate penalty.

There was no contest before the Board and before the Court that the appellant was guilty of discreditable conduct within the meaning of s.18(3)(e) of the Act.

Because the appeal is a re-hearing de novo, the Court must consider the matter afresh, and is not bound by any findings or the decision of the body whose decision is appealed. That is the general rule in relation to appeals which are a re-hearing de novo.

But where the decision-maker is a Board made up of members of a profession whose function it is, to ensure that the highest standards of professional conduct and ethics are maintained in the profession (see s.5(1)(j)), and is responsible for the general control of the practice of pharmacy (see s.5(1)(g)), a different rule applies.

The Pharmacy Board of Victoria comprises ten members, all of whom are registered pharmacists. The combined wisdom of the members with respect to the practice of pharmacy is a matter to which the Court must pay due regard.

The weight that should be attached to any findings made by the Board on an inquiry or its decision on penalty will depend upon the particular circumstances. An issue before the Board may be such that experienced members of the profession are in the best position to make an assessment as to the gravity of the misconduct and what is an appropriate penalty, not only in the public interest but in order to protect the reputation of the profession. On the other hand, the particular issue may be a matter which the Court is in just as good a position as the members of the Board, to make the assessment of the seriousness of the misconduct, and the appropriate penalty.

Hence, it is not possible to lay down any particular rule save and except that the Court should accord such weight to the findings made and the penalty imposed, by the Board, as is appropriate in the particular circumstances.

In Georgoussis v Medical Board of Victoria [1957] VicRp 98; [1957] VR 671 at 679, Smith J said -

"No doubt the Court must know what application was made to the Board and what the Board's decision was, in order that the Court may perform its own function and frame its own order. And where medical questions are involved the Court, if it in fact has the Board's opinion placed before it, will naturally attach great weight to that opinion, as it will to the Board's views on credibility if the evidence given before the Board happens to be used upon the appeal." (Emphases added).

The observations made by Evatt J in Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62 at 104 are apposite in this regard. His Honour said -

"The Board itself has a jurisdiction which covers, not merely questions of fact and incidentally of law, but, and more often, important discretionary powers of an administrative character. It has to determine delicate matters of professional conduct and misconduct and questions of medical and public policy must frequently be involved in its determination. The judge in chambers is also required to deal with all such matters, although, no doubt, he pays great attention to the Board's opinion thereon." (Emphasis added).

In Re Hodgekiss [1962] SR (NSW) 340, Owen J, when a member of the New South Wales Court of Appeal, referred to the weight that should be attached to a tribunal's decision as to misconduct and determination of the proper penalty.

"Such a tribunal is eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. While an appeal from its decision to the Court is in the nature of a re-hearing, the Court should give great weight to and be slow to differ from the committee's opinion that particular acts or omissions by a solicitor do or do not amount to professional misconduct, and the Court should attach the same weight to a decision of the committee as to the appropriate order to be made in a particular case."

In my opinion, the true rule is that this Court ultimately makes its own decision on the issues raised in the appeal, but the reasons for the determination by the Board may be of some weight depending on the circumstances. Where the issues raise matters relating to the practice of pharmacy, the standard that one would expect of the reasonable competent pharmacist or the good character and reputation expected of a pharmacist, the members of the Board are usually in a better position than this Court to make an assessment of those matters, and in those circumstances, the Court should attach substantial weight to their findings. The members of the Board in the present matter, are experienced in the profession of pharmacy, and any issues relevant to the question of penalty, which are concerned with matters peculiar to the profession, must be accorded considerable weight. But where the issues involve matters that do not depend upon the practice of pharmacy, then the Court is in as good a position as the Board to make its own assessment of the penalty.

In the case of Re a solicitor [1956] 3 All ER 516, Lord Goddard CJ, speaking for the Divisional Court, had this to say at p.517, where a member of the legal profession had been found guilty by a criminal court and sentenced to a period of imprisonment for indecently assaulting two young soldiers asleep in a compartment in a moving train. His Lordship said -

"This Court is always, and always has been, very loath to interfere with the findings of the disciplinary committee either on a matter of fact, because they understand these matters so well, or with regard to penalty. If a matter were one of professional misconduct, it would take a very strong case to induce this Court to interfere with the sentence passed by the disciplinary committee, because obviously the disciplinary committee are the best possible people for weighing the seriousness of professional misconduct. There is no suggestion of professional misconduct in this case."

The same observations can be made in respect to the present matter. The appellant committed these serious offences, as a potential employer interviewing a potential employee. His conduct was not confined to the practice of pharmacy. It is conduct which unfortunately could occur wherever an employer seeks to employ an employee. However, his conduct does have a connection with the practice of pharmacy in that he was able, by reason of his position as a pharmacist, to deceitfully induce the potential employees to go along with his investigation because, as a pharmacist, he was concerned about the theft of drugs.

But having made those observations, it is my opinion that this Court is in as good a position as the Board to make an assessment as to the seriousness of the misconduct and to determine the appropriate penalty. The Court does pay weight to the findings on penalty because of the Board's obligation to uphold the good reputation and character of the profession. The Court must pay due weight to its views on that aspect.

I now come to the question of the object of a penalty in a situation of professional misconduct.

The Board sits as a body inquiring into the conduct of a member of the profession. The prime purpose of the inquiry is to ensure that a member of the profession of pharmacy in this State adheres to the high standards expected of a member of the profession. The Board does not sit as a court of law. Its function is not to uphold the law or punish those who may transgress any law in this State.

The appellant has committed breaches of the criminal law, and has been dealt with by the courts and punished accordingly.

The Board, when imposing a penalty after a finding of professional misconduct, is not concerned with punishment. The penalty powers are there primarily for the protection of the public and to protect the reputation of the profession itself.

The principles are well established by high authority. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201, the High Court said -

"Although it is sometimes referred to as the `penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." (Emphasis added).

In the later case of New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183, the Court said -

"The power of the Court to discipline a barrister is ... entirely protective and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." (Emphasis added).

Although these principles were stated in relation to a barrister, they are of general application in respect to professional bodies.

In a recent case, the New South Wales Court of Appeal, when dealing with a medical practitioner, had this to say -

"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession."

See Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

It is noted that one of the penalties available to the Board is the imposition of a fine. This suggests that there may be an element of punishment involved. But on further reflection, it seems to me that the power of fine is available to inflict a penalty with the purpose of specific deterrence, namely, that it is a reminder not to transgress again. Also, the power of fine may be used to uphold the standing and reputation of the profession by informing the public that the professional body views the conduct seriously.

In considering the penalty in the present matter, in my view, there are two prime objectives, namely, the protection of the public and, secondly, to maintain the professional standards of the profession in the eyes of the public.

The appellant has been punished through the criminal law system. He has been charged and found to have committed three serious offences. He has come before the courts. He has been punished in accordance with the criminal law. In addition, he has incurred substantial legal costs.

On any view, he has been severely punished for his stupidity and serious misconduct. His reputation has been tainted. What he has experienced to date should be a constant reminder to him of what he has risked by his stupidity, namely, the permanent loss of reputation, position in the community and his business.

Does the public need to be protected from him practising as a pharmacist? What steps need to be taken to ensure that he does not transgress again?

Members of the public dealing with pharmacists must do so confident that the pharmacist is an honest, reliable, careful and responsible person. The ultimate issue for the decision-maker on penalty is the risk of repetition of the misconduct.

In this regard, after his conduct was reported to the police, the police took the unusual step of seeking out and interviewing some 60 female employees of the appellant. The very full investigation revealed that there were no other incidents involving females similar to the misconduct.

Dr Philip Wood, the psychiatrist who was treating him, in his report dated 27 September 2001, emphasised that the appellant had found the previous year a nightmare, that he was still apprehensive and opined the view that it is good for offenders who are anxious because they are less likely to re-offend. He also noted other features which showed that the appellant was well aware of what he had done and was seeking to make amends.

In a full and detailed report dated 12 October 2001, Dr Nathan Serry, a consultant psychiatrist, traced the history of the appellant and, in particular, the period leading up to the misconduct. He noted that the appellant had been working extremely long hours in the pharmacy, that he became increasingly stressed, that after the birth of his child, his wife had complications and there were sleeping difficulties. In addition to working long hours and having little assistance, the appellant had to deal with the introduction of the GST.

Also noted was that prior to his misconduct, in July 2000, he attended his local general practitioner complaining of stress, tiredness and lack of energy and the symptoms were put down to overwork. In addition, at the time, because of a number of factors, he was unable to have an effective sexual relationship with his wife. Dr Serry observed that since the misconduct, he has been consulting the psychiatrist, Dr Wood; he is on antidepressants and his mood has improved, together with his sleep, appetite, energy, and he has resumed a normal sexual relationship with his wife.

Dr Serry went on to state that he continues to have feelings of anxiety and feelings of guilt. As part of his recovery, the appellant has reduced the hours that he was working and has employed an extra pharmacist. He has spent more time with his family and has commenced voluntary work with the Salvation Army.

"I feel that he had an untreated anxiety and depressive illness and that this provided a context for what was most likely an uncharacteristic acting out."

Dr Serry referred to a number of factors which led him to the conclusion that there was "a relatively low likelihood of re-offending". He then concluded -

"I believe that Mr Ha is currently fit to continue practising as a pharmacist provided he continues with his psychiatric treatment with the modifications that he has undertaken. Whilst it is difficult to be entirely accurate about the likelihood of re-offending, I would state that in this case there are a number of factors which suggest that such likelihood would be low."

Mr Joblin, a forensic psychologist, in his report dated 13 July 2001, also was of the opinion that the most likely cause of his misconduct was due to his stress at the time from difficulties at home and at work.

"One may indicate that these offences do not in themselves represent a chronic, ongoing sexual deviation. They do represent an inappropriate response to excessive stress. The basis for that stress needed resolution and that has occurred. That factor together with Mr Ha's own intropunitive conscience and his self-deprecation will provide significant deterrence. Under these conditions it is difficult to consider that this man will seek any such inappropriate behaviour as an answer to stress again."

In addition to that material which was before the Board, a report of his GP, Dr Myer Brott, dated 10 July 2001, was placed before the Court. He confirmed what had been stated in another report, that over a three year period, especially over the 12 months prior to July 2001, the appellant had manifested features consistent with a chronic anxiety state, major depression, and possibly a bipolar mood disorder. It was obvious to the doctor that he had not been coping.

The subsequent history has shown that with appropriate treatment from Dr Wood and a changed set of circumstances, Mr Ha is now functioning at a far better level.

In addition, the Court had before it the Community Correctional Services report dated 24 July 2002 concerning the Community Based Order.

The report notes that the appellant has responded to supervision in a satisfactory way and was currently subjected to monthly reporting. He carried out community work at the Canterbury Centre and then Brimbank College. He completed his 150 hours of community work.

Dr Wood has now indicated to the appellant that he does not require any further treatment.

The effect of the Order is ongoing supervision.

In addition to the matters just mentioned, on the question of likely re-offending, the appellant has put on the line his standing in the community and his future in the pharmacy profession. Allied to these factors is the risk that he could have been financially ruined by the loss of his business.

The appellant's experience, the treatment to date and the reports from the various professionals lead to the conclusion that it is highly unlikely that he would ever re-offend.

In making that assessment, I also take into account the determination of the appellant, coming from a war-torn country, discriminated against and arriving in Australia, educating himself, and qualifying as a pharmacist. His conduct in the past shows a man who is intelligent and determined and is unlikely to put at risk what he has achieved.

A period of suspension is not warranted in the circumstances, especially as it could cause his financial ruin. It is unnecessary in the circumstances. His experience and the punishment meted out by the Court is a constant reminder not to transgress again.

The other aspect concerns the standing of the profession in the community. It is important to the reputation of pharmacists in the community that any transgression in their professional lives is marked by appropriate disapproval. In determining this issue, it is necessary to bear in mind that the purpose of a penalty is not to punish the appellant who has already been punished through the legal system.

What the Court has before it, and which was not before the Board, was evidence concerning the appellant's business and the calamitous and disastrous effect, a three months' suspension could have upon the appellant's business interests. The Court has been informed that the probabilities are indeed high that he could not take alternative measures to keep his pharmacy open and his business would fail, five employees would be out of work, and he would be financially ruined. He pays a substantial sum of rent each month, together with interest on substantial loans, obtained in order to establish his business.

In the final determination, it is for this Court to impose an appropriate penalty and giving effect to the twin considerations of public interest and maintenance of the integrity and standing of the profession, it is my opinion that a penalty which does not include suspension would be appropriate.

Mr Dunn QC, who appeared with Mr Dempsey for the appellant, submitted that the Board, by severely reprimanding the appellant, had satisfactorily dealt with the issue of the standing of the profession. I do not agree. I think there should be an additional penalty to mark the disapproval of his conduct and to demonstrate to the public that the Board views the matter seriously.

The maximum fine that the Board and the Court, on appeal, can impose, is $2,500. In my view, the appellant should pay a fine of $1,500.

The appellant did not seek to argue against the amount of costs which were ordered by the Board after the Court made it clear that it would be most unlikely that there would be any interference with the order for costs. I do not propose to interfere with the order for costs of the inquiry.

In an endeavour to avoid the stressful situation arising again, the Board imposed a condition, for a period up to 27 November 2003, that the appellant not work more than 40 hours per week. I am not prepared to impose such a condition. Most self-employed people conducting a practice, work longer than 40 hours. He should be in a position to properly conduct his business. It is noted that the Board imposed this condition until 27 November 2003. In my view, the appellant should see Dr Philip Wood, psychiatrist, periodically to ensure that he is dealing adequately with the stresses of running his own business. Dr Wood is now of the view that he does not need further psychiatric treatment. However, the Court does require the appellant to see Dr Wood each three months until 27 November 2003 for the specific purpose of Dr Wood being satisfied that his job is not over-stressing him. It will be a condition that he comply with any reasonable treatment prescribed by Dr Wood to avoid any excess stress in his business.

In my opinion, the appeal should be allowed, as the three months' suspension was an inappropriate penalty, taking into account all the relevant circumstances which were before this Court. The Court will impose penalties which are appropriate in the circumstances.

Subject to any submissions by counsel, I propose to make the following orders -

(1) That the appeal against the determination made by the Pharmacy Board of Victoria on 22 January 2002 be allowed;

(2) that in lieu of the penalties determined by the Board, the Court imposes the following penalties -

(a) that the appellant, Jason Van Lan Ha, is reprimanded in the strongest possible terms in respect of his misconduct;

(b) that the practice of Jason Van Lan Ha as a pharmacist be subject to the following conditions until 27 November 2003 -

(i) to abstain, in his place of practice, from being alone with a member of the public in a private area unless a clear, unobstructed view of that area is available, or another person is present; and

(ii) that he consult Dr Philip Wood, psychiatrist, every three months, the first consultation not being later than 31 August 2002 and to undergo any reasonable psychological or psychiatric treatment administered by Dr Wood to avoid any build up of stress in his business.

(3) that the appellant, Jason Van Lan Ha, be fined the sum of $1,500;

(4) that he pay the costs of and incidental to the inquiry of $5,994.10.

I will hear the parties on the question of costs of the appeal.

Supreme Court Rules 1998

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (5)