Health Care Complaints Commission v Behi

Complaint Two - Criminal offences under s 144(a)

1. Complaint Two asserts that pursuant to s 144(a) of the National Law, the Practitioner has been convicted of criminal offences in New South Wales. Upon our invitation the Applicant sought leave to correct errors in Complaint Two in: 1. Section numbers of the Crimes Act 1900 (NSW) (Crimes Act); 2. Names of the offences for which the Practitioner was charged; and 3. One other typographical error.
2. That leave was granted by consent.
3. The particulars of Complaint Two (as amended) are that on 27 June 2022, at the Sydney Downing Centre District Court, the Practitioner was convicted of: 1. Five counts of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act. 2. Eight counts of aggravated sexually touching another person without consent contrary to s 61KD(1)(a) of the Crimes Act.
4. There is no contest about the fact that the Practitioner was convicted of the offences described in Complaint Two at the Sydney Downing Centre District Court on 27 June 2022.

The period of the sentence

1. Judge Huggett (as she then was) imposed an aggregate term of imprisonment of nine years, to date from 20 March 2022 and to expire on 19 March 2031, with an aggregate non-parole period of imprisonment of five years and six months, to date from 20 March 2022 and to expire on 19 September 2027, on which date the offender will be eligible for release to parole. Her Honour did not impose the standard non-parole period given her findings in relation to severity.
2. On 16 August 2024 the Court of Criminal Appeal dismissed the Practitioner's appeal against the conviction.
3. Complaint Two has been established.

Protective orders in relation to Complaint Two

1. The Applicant seeks an order under s 149C(1)(c) of the National Law that the Practitioner's registration as a chiropractor be cancelled.
2. Section 149C(1) of the National Law provides the Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied: (c) the practitioner has been convicted of or may be subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.
3. The jurisdiction of the Tribunal is protective, with its role being to ensure that those who seek the services of health and medical practitioners are not exposed to inappropriate conduct. Section 3A(1) of the National Law provides the main guiding principle is that the protection of the health and safety of the public must be the paramount consideration. Section 3(2)(a) states that an objective is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.

The meaning of "unfit in the public interest to practise the practitioner's profession"

1. The National Law does not contain a definition of unfitness to practise in the public interest. That concept falls to be interpreted in light of the objectives in s 3 and s 3A of the National Law (Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 ("Limboro") at [14]).
2. In this case there is a clear nexus between the criminal offences and the practice as a chiropractor in respect of which the Practitioner's registration was granted. As the Tribunal observed in Health Care Complaints Commission v Hachem [2022] NSWCATOD 169 at [116], in order to be fit to practise as a chiropractor, a person needs to have a very clear understanding of inner personal boundaries, the need for consent and what is appropriate and inappropriate touching.
3. The relevance of these criminal offences however can be seen to have an additional dimension when considering whether the Practitioner is unfit in the public interest to practise his profession. The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as standards to which human conduct is to be held.
4. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 ("Crickitt") at [56(7)(f)]: "A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits."
5. In Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 ("Karimi") at [123(6)(b)] the Tribunal referenced the statement in Crickitt and slightly reframed it: "The 'public interest' consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession".
6. In Ghosh v Medical Council of New South Wales [2020] NSWCA 122, Brereton JA at [9] (with whom Emmett AJA at [135] and Simpson AJA at [136], generally agreed) cites this proposition from Karimi with apparent approval.
7. Whether a practitioner is unfit in the public interest to practise requires the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction upon the practitioner in terms of any insight, contrition and remorse (see Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]).
8. Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability. This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and any investigation or sanction. All of these considerations, past or present, must inform an assessment of the current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration (see Limboro at [22]).

Standard of proof

1. The facts upon which we proceed in these proceedings need to be established by the Applicant on the balance of probabilities. Because of the serious nature of these facts, they need to be established to our reasonable satisfaction. The question of whether that level of proof has been reached is to be assessed having regard to all the relevant evidence before us.
2. In Briginshaw & Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw"), Dixon J (as he then was), said in civil cases: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

"The circumstances of the offence"

1. In this case, the Practitioner cannot and does not dispute that he has been convicted of five counts of aggravated sexual intercourse and eight counts of aggravated sexual touching.
2. What he seeks to say however is that he was innocent of the charges upon which he was convicted and that innocence is a circumstance of the offence which we should take into account when considering what protective orders to make. Whilst maintaining innocence, the Practitioner indicated that he continued to seek that the matter be dealt with "on the papers" and he neither wished to lead any evidence about his innocence nor to dispute any of the material in Exhibit 1 and in particular the findings made by Judge Huggett on sentencing. In those circumstances the preponderance of evidence before us supports the jury's verdict and the findings of the sentencing judge. On that basis we make the findings which follow to our reasonable satisfaction.
3. The Practitioner was arrested on 18 July 2019.
4. On 21 March 2022, the Practitioner was charged with the following 13 offences committed upon Patient A between 31 January 2019 and 4 April 2019: 1. In counts 4, 6, 7, 8 and 13, Sexual Intercourse without Consent whilst under Authority (aggravated sexual intercourse) pursuant to s 61J(1) of the Crimes Act; and 2. In counts 1, 2, 3, 5, 9, 10, 11 and 12, Sexual Touching without Consent whilst under Authority (aggravated sexual touching) pursuant to s 61KD(1)(a) of the Crimes Act.
5. Sections 61J(2)(e) and 61KD(2)(b) of the Crimes Act provide one element of "circumstances of aggravation" can be that at the time of the commission of the offence, the victim was under the authority of the Practitioner.
6. By way of legislative guidepost, the five s 61J(1) offences each have a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment, and the eight s 61KD(1)(a) offences each have a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years imprisonment.
7. The Practitioner first stood trial between 22 February and 8 April 2021 in relation to these 13 offences and the jury was discharged after they were unable to reach any verdicts.
8. The second trial commenced on 8 February 2022. On 21 March 2022, the jury returned unanimous verdicts of guilty in relation to all counts. Judge Huggett presided over the second trial. Her Honour sentenced the Practitioner on 27 June 2022. The jury found the elements of each count against the Practitioner proved beyond reasonable doubt.
9. At the sentencing hearing, the Crown and counsel for the Practitioner were not in agreement regarding the factual basis upon which the Practitioner was to be sentenced. Judge Huggett observed it was incumbent upon her when sentencing the Practitioner, consistently with the elements of the offences as found by the jury, to make further factual findings regarding the circumstances in which the offences were committed. What now follows in [40] to [69] is largely drawn from part of the longer factual findings by her Honour in her reasons for the sentence.
10. On November 2018, Patient A travelled to Australia on a working holiday visa. She was aged 30 or 31 when she arrived. She spoke limited English and enrolled in an English language school in the Haymarket area and by early 2019 was living with an Australian host family. Patient A could speak very basic English words and short sentences and often communicated using Google Translate and/or by writing things down and/or having others write things down.
11. When Patient A was 17 years of age, she had hurt her lower back in a fall and began to experience back pain. In her late 20s, she began to experience groin pain and had sought acupressure, chiropractic and relaxation massage treatment. She had also suffered cervical cancer. Some lymph glands and part of her uterus had been surgically removed which had caused some scarring to her abdomen.
12. A third party suggested to Patient A that she should attend the Practitioner for treatment.
13. At that time, the Practitioner was a part owner of the Back Guys Chiropractic Clinic in York Street, Sydney. He had been a chiropractor for over 18 years. His qualifications entitled him to be referred to as "Dr Behi". Patient A attended the first two treatments on 5 January 2019 and 17 January 2019 with the third party. Both attendances were uneventful and took place in a usual therapeutic manner.
14. At the second appointment, the Practitioner gave Patient A a flyer advising her (through the third party) of a package deal of 20 treatments for $1,200, which meant the treatments would be less expensive than if they were paid for individually. Due to the extent of Patient A's injuries and the Practitioner's opinion of the treatment she required, he recommended this package deal.
15. The third party also booked and attended the third appointment on 22 January 2019 and the next on 24 January 2019. It was around this time that the third party purchased the session package deal which he paid for using his credit card. At some point around the time of these appointments, the Practitioner gave Patient A his mobile telephone number.
16. Patient A generally attended the appointments on Tuesdays and Thursdays and would typically book the next appointment at the end of that appointment, either with the Practitioner or with the receptionist.
17. The Practitioner used "hand signals, gestures and sound effects" to try to communicate with Patient A and on occasions used Google Translate to communicate with her. Patient A's fifth appointment was on 29 January 2019. She attended alone. Amongst other things, she and the Practitioner had a conversation using Google Translate about the scar on her abdomen and whether the treatment was helping to move the lymph around the hip joint. During this appointment, the Practitioner said he was going to change the treatment in order to partly focus on the scarring.

Count 1 - 31 January 2019 - Aggravated Sexual Touching

1. Patient A attended for an appointment on Thursday 31 January 2019. She entered the treatment room and was instructed by the Practitioner to remove her clothing - which she did except for her underwear. She then lay face down on the treatment table and the Practitioner placed a towel across her lower back, tucked it into her underwear and pulled both the towel and her underwear down to the level of her thigh so that her butt cheeks were exposed. The Practitioner massaged Patient A's butt cheeks and then asked her to turn over onto her back and instructed her to remove her underwear which she believed was necessary so the Practitioner could focus on the scarring on her abdomen. The Practitioner then massaged Patient A, focusing on her groin area and touched her genital area (that being Count 1).

Count 2 - 5 February 2019 - Aggravated Sexual Touching

1. Patient A attended for an appointment on Tuesday 5 February 2019. She entered the treatment room and was instructed by the Practitioner to remove her clothing and underpants - which she did except for her bra. She then lay face down on the treatment table and the Practitioner massaged her lower back, butt cheeks, groin and thigh areas. The Practitioner then asked Patient A to turn onto her back. He placed a towel on her abdomen and massaged her groin and thigh areas. Whilst massaging her groin, the Practitioner touched Patient A's genital area (that being Count 2).

Counts 3 and 4 - 7 February 2019 - Aggravated Sexual Intercourse and Aggravated Sexual Touching

1. Patient A attended for an appointment on Thursday 7 February 2019. She entered the treatment room and removed her clothing and underwear but not her bra. The Practitioner instructed Patient A to lie on her stomach on the treatment bed and he began massaging her legs, groin area and butt cheeks and touched her genital area. During this appointment, Patient A was very tired, and she began to fall asleep. She then felt the Practitioner insert his finger into her vagina "a little bit" for a second or less which shocked her and made her body jump (that being Count 4). He then instructed her to turn over and lie on her back whereupon he placed a towel over her abdomen, stretched her body and massaged her groin and thigh and touched her genital area (that being Count 3; it is unclear as to whether the earlier touching of the genital area on this day was also part of Count 3).

Counts 5, 6 and 7 - 12 February 2019 - Two counts of Aggravated Sexual Intercourse and one count of Aggravated Sexual Touching

1. Patient A attended for an appointment on Tuesday 12 February 2019. She entered the treatment room and the Practitioner instructed her to remove her clothing and underwear - which she did except for her bra. The Practitioner instructed Patient A to lie on her stomach on the treatment table and he massaged her thigh, groin and butt cheeks. While massaging Patient A's buttock area, the Practitioner touched her anus and put his finger briefly inside her anus (that being Count 7).
2. The Practitioner also instructed Patient A to lie on her back and he massaged her inner thigh and rubbed her clitoris (that being Count 6).
3. Patient A tried to compose a sentence in English to ask the Practitioner what he was doing. When he asked her in English something that she interpreted as "how" and "feel", whereupon she said "stop" and "no". The Practitioner then said, "why?" to which Patient A replied along the lines of, "yes, why?" as she was trying to find words in English. The Practitioner asked Patient A whether she wanted him to stop to which she replied, "Yes". The Practitioner then placed his hands on top of her abdomen and used one hand to lift her bra and touch her breast (that being Count 5).
4. The Practitioner then picked upon his mobile phone and used Google Translate to communicate words to the effect, "The type of massage I am giving you is not an ordinary regular massage". Using Google Translate, Patient A told the Practitioner that she wanted him to give her "a regular massage" and that she did not want him to give her "this kind of massage". The Practitioner responded with words to the effect that he would not give her the same massage again and that he had not done this kind of massage before.

Count 8 - 19 February 2019 - Aggravated Sexual Intercourse

1. Patient A attended for an appointment on Tuesday 19 February 2019. She entered the treatment room and the Practitioner instructed her to remove her clothing, which she did, except for her bra and underwear. The Practitioner instructed her to lie on her stomach on the treatment table and he placed a towel on her back, tucking it into her underwear and pulling her underwear down to her thighs, exposing her butt cheeks. The Practitioner then massaged Patient A's thigh, groin, lower back and butt cheeks. The Practitioner then instructed Patient A to roll onto her back and he told her to remove her underwear. Patient A did not comply and the Practitioner said words to the effect, "This is necessary things to do", and he removed her underwear. The Practitioner then began massaging Patient A's thigh and groin areas and moved his hands closer to her genital area and inserted a finger into her anus (that being Count 8).
2. Patient A felt shocked and confused and put her clothes back on. Using Google Translate, the Practitioner said words to the effect that, "He had never done something like this in his long career", and "I'm sorry to offend you and make you feel bad and I will never do that again".
3. Using Google Translate, Patient A said words to the effect, "I want you to give me just regular massage. I don't want you to do towards me something like this what happened again today".

Count 9 - 7 March 2019 - Aggravated Sexual Touching

1. Patient A attended for an appointment on Thursday 7 March 2019. She entered the treatment room. The Practitioner instructed her to remove her clothing - which she did except for her bra and underwear. The Practitioner instructed her to lie on her stomach on the treatment table and he placed a towel on her back, tucking it into her underwear and pulling her underwear down to her thighs, exposing her butt cheeks. The Practitioner then massaged her thigh, groin, lower back and butt cheeks as well as applied pressure to the sides of her spine and lower back down to her tail bone. While pressing around her tail bone, the Practitioner touched Patient A's anus for between one and three seconds (that being Count 9).

Counts 10, 11 and 12 - 14 March 2019, 21 March 2019, 28 March 2019 - Aggravated Sexual Touching

1. Patient A attended for appointments on Thursdays 14 March 2019, 21 March 2019 and 28 March 2019. On each of those occasions the Practitioner perpetrated the crime of aggravated sexual touching against Patient A in a similar manner, as follows. She entered the treatment room and the Practitioner instructed her to remove her clothing - which she did except for her bra and underwear. The Practitioner instructed her to lie on her stomach on the treatment table and placed a towel on her back, tucking it into her underwear and pulling her underwear down to her thighs, exposing her butt checks. The Practitioner then massaged her thigh, groin, butt cheeks and lower back before giving her acupressure along her spine down towards her tail bone. While massaging her tail bone, the Practitioner touched Patient A's anus (Counts 10, 11 and 12).

Count 13 - 4 April 2019 - Aggravated Sexual Intercourse

1. Patient A attended for an appointment on Thursday 4 April 2019. She entered the treatment room and the Practitioner instructed her to remove her clothing - which she did except for her bra and underwear. The Practitioner instructed her to lie on her stomach on the treatment table. The Practitioner said something to Patient A indicating that he would be trying a different type of massage and showed her a handheld massager used in the clinic.
2. While Patient A was lying face down on the treatment table, the Practitioner undid her bra clasps but left her bra on and asked her in English to remove her underwear. Patient A grabbed her underwear to prevent the Practitioner from taking them off, however, he removed her underwear.
3. He then commenced massaging Patient A on her shoulders, neck, back, lower back, butt cheeks and groin and then used the massage machine on her lower back, butt cheeks and groin. The Practitioner also gave Patient A acupressure treatment along her spine and towards her tail bone.
4. The Practitioner then instructed Patient A to lie on her back. After she turned over, the Practitioner did not cover her body with a towel and Patient A placed her unclipped bra across her breasts. The Practitioner commenced to massage Patient A and used the handheld massager on her thigh and groin. He then put the massager on her abdomen, near the scar from her surgery. Patient A immediately felt pain and grabbed the machine to try and communicate with the Practitioner that she wanted him to stop using the massager on her scar.
5. The Practitioner then continued to massage Patient A and then took both of her legs and bent them towards her chest area in a position she likened to a baby having her nappy changed. The Practitioner then licked Patient A's vagina (Count 13). The Practitioner then handed Patient A her underwear and she put them on. She then got dressed and left the treatment room.

Patient A's complaint to the Police

1. Patient A did not return for any treatment with the Practitioner after the attendance on 4 April 2019.
2. On 17 April 2019 Patient A was referred by a medical centre to a psychotherapist and counsellor whom she saw on 18 April 2019. She had also spoken to her host mother. Patient A and her counsellor then went to the police to make a complaint. An arrangement was made for Patient A to return at a time when a Japanese interpreter could be present. Between 26 and 27 June 2019, Patient A provided a statement to the police.
3. Patient A believed the Practitioner was a medical doctor and she would bow to him and thank him every time she left the premises. She continued to attend for treatment because she trusted him and thought it might be "rude" to question aspects of his treatment and her priority was to get rid of her pain which was making life very difficult for her and affecting her ability to sit in English classes. Furthermore, aspects of the Practitioner's treatment were providing some relief for her symptoms. Patient A also noted cultural differences between Australia and Japan and thought treatment practices in Australia might differ from those in Japan.
4. The Practitioner was arrested by police on 18 July 2019. He declined to participate in a police interview.

The assessment of seriousness by the Trial Judge

1. The Trial Judge observed that the circumstance of aggravation present in this case, namely that Patient A was under the authority of the Practitioner at the time of the offences, was deemed by the Trial Judge not to be as serious as other possible circumstances of aggravation. The Trial Judge found that they were below a mid-level range of seriousness of aggravated sexual assault and aggravated sexual touching. This was because the offenses appeared to have been momentary or fleeting and were committed without the use of violence, threats or particular force and no physical injury was occasioned. The Trial Judge found that, in relation to Counts 1 to 3, the Practitioner had a reckless rather than intentional state of mind. Her Honour found that in relation to Count 4, given that Patient A was beginning to fall asleep when the Practitioner digitally penetrated her vagina, he must have known that she was not consenting. At paragraph [69] of the sentencing reasons (page 277), the Trial Judge says, "I am satisfied beyond reasonable doubt that Patient A did express her lack of consent by word and/or actions from the point of Count 6 onwards and that at the time he committed Count 5, and Counts 8 to 13 inclusive, he had actual knowledge that she was not consenting to anything other than legitimate treatment and with that knowledge, he continued to offend for his own sexual gratification." It is unclear as to whether the Trial Judge was of the view that the aggravated sexual assaults constituted by Counts 7 and 6 were reckless or intentional. Given the Practitioner's behaviour in relation to Count 4 was intentional we are comfortably satisfied the behaviour constituted by Counts 7 and 6 was also intentional.

The Practitioner's appeal

1. The Practitioner filed a Notice of Intention to Appeal the conviction, Court of Criminal Appeal, Supreme Court New South Wales on 28 June 2022. That appeal was eventually heard on 12 June 2024 and the Court of Criminal Appeal provided their decision on 16 August 2024 ([2024] NSWCCA 89), dismissing the appeal.
2. There were two grounds of appeal. The first was that an error was made in excluding certain evidence. The second ground of appeal was that the jury's verdicts on indictment were unreasonable and unsupported by evidence. Ward P at [392]-[393], [396], [414]-[417] with whom Campbell J at [421] and Button J at [422] agreed, found that in assessing the reasonableness of the verdict, the appeal court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the Applicant is guilty of the offences for which he has been convicted. The judges concluded that it was open to the jury to convict the Practitioner of all 13 counts. The judges on appeal concluded that inconsistencies in Patient A's handwritten personal notes, the counsellor's notes and the text communications were explicable by reference to other evidence, such as Patient A's limited understanding of English. Further, the text messages between the Practitioner and Patient A in so far as they demonstrated an acceptance by the Practitioner of instances of sexual contact, were especially compelling.

The messages of 11 and 12 April 2019 (Exhibits DH and L at trial)

1. At paragraph [416] of President Ward's reasons, he says: "The most compelling evidence in my view is that comprised by the Apil 2019 messages (see exhibits DH and L). The [practitioner's] response to the [Patient A's] messages, far from being a denial of sexual misconduct (other than the denial of licking her body) accepts that there was sexual conduct at least in February and his protestation that he only said he found her sexually attractive to placate her is something that was open for the jury to find self-serving and implausible."
2. Both the other judges agreed with those comments and Button J said, "I consider that the text messages of the [practitioner] provide significant support for the Crown proposition that the disputed occasions of sexual contact had indeed occurred".
3. On 11 and 12 April 2019, there were text messages between Patient A and the Practitioner. Both used Google Translate to communicate in their languages. There were some inaccuracies in translating Japanese into English and vice versa.
4. In those text messages, the Practitioner wrote: "I would like to apologise when I see you on todays appointment. I felt that I was attracted to you and you were attracted to me. However, when you told me to stop, I stopped. Since then I havent done anything to you. Last time I did not lick you and I even did not know how to do that. It was impossible. It has nothing to do with me. Last time I tried a different type of massage with a massage machine thats why I used it. Sometimes people complain they pain when they do I change my treatment. I apologise for your uterus pain but no previous patient ever complained. I am good person. I am sorry to felt disgusted. I am asking you whether you can give me a chance to talk to you. It doesnt have to be in my clinic. We can meet up at a food court in the city then you will see that I am genuine and that I didnt mean to hurt you. I have a young family and this will cause a lot of pain. I urge you an opportunity to apologise to you and to show you I was trying my best to fix your back. Can we go to the town so that we can talk and I can explain and apologise? I am going overseas from tomorrow for 2 weeks but I dont want you to feel this way. I want to explain to you that I thought that I was attracted to you and you attracted to me but you said stop no so I felt embarrassed and I was a fool so I didnt know what to say. I felt sorry in February but since then I was only focusing on improving your back. I have been trying my best for this and I havent done anything inappropriate since February So that you succeed in test. I didnt touch there and licked you anywhere. I feel bad that you feel this way. I hope that you come to see me today. I can also give you a refund a balance of the treatment fee. I really tried my best to fix your back. [First name of Patient A] where you attracted to me? I want to explain to you again so you can see my intention In February I was strongly attracted to you. I also felt you had a similar feeling As I felt that you responded to my touch, I received more massage Even after I touched you all over because you enjoyed it very much, we laughed together. To be honest I thought we were going to have sex. So when you told me to stop I felt you felt the same way and also I was embarrassed and ashamed I crossed the line with myself and a patient Ive never done this before! I have never been unprofessional in the 20 years of my professional work. So when you asked me why I did it I told you I don't know because I didn't know what to say. Also, it is difficult for us to communicate with each other. I feel really bad since then all I did was I thought I could improve your back. It was much better then when we started it wasn't fixed yet I massaged your high back I tried different stretch and I used electronical machine, which is used on many of my patients. I used it more often than my own hands. It is not a vibrator it is for treatment massage I used it hoping it helped you to relax your massage. I am sorry you actually felt the pain from it my intention was to try my best to fix you Ive never licked you and I don't understand why you think so. I wouldn't do that especially because you said no to me. I understand my act made you feel so bad unprofessionally Im sorry I liked you and I thought you liked me. When you said no I regrated [sic] and ashamed of my choice so I didn't know what to say I can see how uncomfortable you felt afterwards but since you said no to me in February I focused on your back. I think you can see that I am worried this might not be translated correctly into Japanese and this could create misunderstanding for us For instance you call massage machine vibrator. It means something else in English and it could be misunderstood I don't know if you were talking about it all wrong so if we sit next to each other we could immediately check so we won't misunderstand each other I want to correct this but I want to make sure you don't feel bad. I am leaving overseas with my children today and won't be able to send or receive SMS from this number for the next 2 weeks. If you want to contact me or ask me or tell me anything please send an email to sydneychiropractic@gmail.com. Also then you can sent me you bank account details I will give you refund $240 which is left for your treatment. I hope you accept my apology and you feel better after reading this message." [errors in the original]

The effect of the Practitioner's behaviour on Patient A:

1. When sentencing the Practitioner, Judge Huggett made the following remarks: "74. One of the purposes of sentencing is to recognise the harm caused by the offending. 75. A Victim Impact Statement by [Patient A] was read out on her behalf. It conveys the embarrassment, shame and humiliation suffered by [Patient A] as a result of the offending. She describes that she suffered alone for a number of weeks while the offending was taking place and that she felt that she was taken advantage of due to the language barrier. She repeated a number of times throughout her Victim Impact Statement that she is left with bad memories of Australia to the point where her original life plans, such as to get married and have children, have been affected. 76. [Patient A] states that her main motivation for going to the police was to ensure that other women and particular 'foreign' women were not put in a similar position by [the Practitioner]. She further describes that she felt guilty about reporting the offending because she was worried about [the Practitioner's] children being left without a father and a role model… 78. I accept that [Patient A] has suffered harm that has impacted various domains of her life as a direct result of the offending."
2. The Trial Judge then goes on to discuss whether the evidence of the harm established beyond reasonable doubt that it was substantial such as to be a matter of aggravation under the Crimes Act and the manner in which her Honour took into account the result of the offending upon [Patient A].

Remorse and risk of reoffending

1. The Practitioner maintained his innocence at his criminal trials; on his appeal; in the Reply filed to the current application; in emails sent to the Applicant which became exhibits (particularly the email of the 9 January 2025), and orally before us. This was a blanket assertion that he was innocent of all charges. The Practitioner apportions blame to Patient A for constructing a false story.
2. There was no evidence that would permit Judge Huggett to find on balance that the Practitioner was contrite and/or remorseful for the serious criminal offences for which he has been convicted.
3. Judge Huggett found that the Practitioner was entitled to a degree of leniency given that he had had no previous criminal record and was otherwise of good character. Her Honour was of a view that the time the Practitioner will spend in prison was in itself a strong deterrent and a force in reshaping his thinking. She found in those circumstances that the Practitioner had a reasonable prospect of rehabilitation. Her Honour also found that the offences were out of character and notwithstanding the Practitioner's continued denial of the offences, was satisfied the Practitioner's risk of reoffending was low.

Conclusion about cancellation

1. The circumstances of the offences were: 1. Repeated instances of non-consensual sexual intercourse and sexual touching; 2. These offences were aggravated by the fact that the victim was a patient of the practitioner and the practitioner was in a position of authority; 3. The offending occurred during the course of consultations and under the guise of "treatment"; 4. The victim was vulnerable in that she spoke limited English; and 5. In relation to the majority of the offences the practitioner had actual knowledge that the victim had not consented to anything other than legitimate treatment and, with that knowledge he continued to offend for his own sexual gratification. In relation to the remainder he acted with criminal recklessness.
2. The offences in the present case were objectively serious. While the circumstances set out in these reasons would be serious in relation to any health practitioner, they are particularly serious where the provision of the health service involves physical contact with the patient, such as chiropractic services.
3. The circumstances of the offences are such that they render the Practitioner unfit to practise. By his offending, the Practitioner has exhibited a disregard for the bodily autonomy of Patient A.
4. Further, the Practitioner has not provided any evidence of insight or contrition. He continues to deny the conduct the subject of the convictions.
5. The serious nature of the Practitioner's conduct, together with the absence of any evidence of insight or contrition, would support an order for cancellation of the Practitioner's registration.

Non-review period

1. We turn now to the question of the imposition of a time period before the Practitioner may seek to review, under s 163A of the National Law, the cancellation of his registration.
2. Subsection 149C(7) of the National Law provides an order for cancellation may provide that an application for review of that order may not be made until after a specified time.
3. In final submissions, the Applicant confirmed the protective order sought was a cancellation of the Practitioner's registration as a chiropractor with a non-review period of five years from the date we made orders. The Applicant hinted that the non-review period could be less than five years if the Tribunal was so minded.
4. As earlier indicated, the Practitioner's primary position in relation to the non-review period is that it should be backdated to the date of his suspension, namely 30 July 2019. This would mean that if the non-review period was five years, it would have already expired at the date of our order and upon our cancelling his registration, he would be immediately at liberty to apply for re-registration.
5. The Practitioner has indicated in written documents that he did not intend in the future to seek re-registration as a practitioner. He confirmed before us that that is still his position, although he also said that he may in the future change his mind about that.
6. The Practitioner explained that the reason why his criminal proceedings took a long time to finalise was largely due to not being able to obtain but eventually being able to obtain, legal aid for representation in his criminal proceedings including for his appeal to the Court of Criminal Appeal.
7. Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74] makes it clear that "time served" between the suspension of the registration and a hearing before the Tribunal might only be relevant if some action is taken in that time by the practitioner to remediate the difficulty that has led to the suspension. It's trite to observe that when exercising our discretion to impose an order under s 149C(7) we must consider the unique facts and circumstances of this case.
8. The Practitioner has not sought to adduce any evidence, expert or otherwise. that he has sought or obtained any treatment or assistance.
9. We acknowledge Judge Huggett's prediction that the time the Practitioner will spend in prison was in itself a strong deterrent and a force in reshaping his thinking. Her Honour also found that the offences were out of character and notwithstanding the Practitioner's continued denial of the offences, was satisfied the Practitioner's risk of reoffending was low.
10. Whilst Her Honour found in those circumstances that the Practitioner had a reasonable prospect of rehabilitation, we have no actual evidence of any.
11. As we have said we are comfortably satisfied that the Practitioner is guilty of the behaviour that we have described in detail. The Practitioner's maintenance of his innocence of the offences creates difficulties in relation to our consideration of any insight that he may have obtained since the sentencing. We have no evidence the Practitioner has obtained or is likely to obtain any professional assistance whilst he is incarcerated. In fact, the Practitioner's current position is that he doesn't need any. This position arises out of the maintenance of his innocence. The Practitioner needed to acknowledge what he did to Patient A in 2019 for the Tribunal to have any confidence that he would not reoffend.
12. The predominant consideration is the protection of the public. A significant non-review period is required to ensure the safety of the public by denouncing the Practitioner's serious crimes and sending the message that the Tribunal is focused on maintaining the integrity of the profession.
13. We conclude that the non-review period should be five years from the date of this order. This would mean that the earliest time that the practitioner could seek re-registration as a chiropractor is the end of February 2030.

Complaint One - Unsatisfactory Professional Conduct under s 139B(1)(b)

1. Complaint One was that the Practitioner was guilty of unsatisfactory professional conduct because he failed to notify the National Board in writing within seven days that he had been charged on 18 July 2019 with offences punishable by 12 months imprisonment or more.
2. Complaint One was, at the suggestion of the Tribunal, withdrawn by the Applicant. There is some need to discuss the circumstances leading to the withdrawal of Complaint One as it is relevant to the consideration of costs.
3. Sections 130(1) and (3)(a)(i) of the National Law requires all registered health practitioners to notify the National Board in writing of any "relevant event" within seven days of becoming aware that a relevant event has occurred in relation to the practitioner. A relevant event includes that the practitioner has been charged with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(i) of the National Law).
4. Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes: (b) Contravention of this law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, …
5. There was some confusion at the hearing as to the relevant entity to whom written notice needed to be given, with the suggestion by the Practitioner that a notice to the Australian Health Practitioner Regulation Agency (AHPRA) was sufficient. The Practitioner reported during his criminal trial that following his arrest in 2019, he informed AHPRA of the charges and was told he could not continue to practise until the trial was resolved (Exhibit 1, page 283, Sentencing remarks paragraph 95). He also incorrectly stated (in Exhibit 4) that the Applicant had alleged in Complaint One that he had failed to give notice to AHPRA where in fact what the Applicant asserted was that the Practitioner had failed to give notice to the National Board.

Can Notice be given to AHPRA instead of the National Board?

1. We involve ourselves in the following discussion only because of the confusion at the hearing about the entity to whom notice of the criminal charges needs to be given.
2. Regulation 4 of the Health Practitioner Regulation National Law Regulation 2018 prescribes that the National Board for a chiropractor is the Chiropractic Board of Australia. The Chiropractic Board of Australia and AHPRA are two distinct entities.
3. As just mentioned, under ss 130(1) and (3)(a)(i) of the National Law, the Practitioner was required to give written notice of criminal charges to the National Board and not to AHPRA. If notice is given to AHPRA rather than to the National Board, the Practitioner has not complied with s 130 of the National Law and is consequently technically guilty of unsatisfactory professional conduct under s 139B(b) of the National Law.
4. This is so notwithstanding, part of AHPRA's function is to establish efficient procedures for the receiving and dealing with notifications against registered health practitioners, including by establishing a national process for receiving notifications about them (s 5 and s 25(i) of the National Law). Any formal or informal agreements between the National Board and APHRA and any formal or informal delegation of functions do not overcome the clear words in s 130 of the National Law. In this case, any written notification had to be addressed to the Chiropractic Board of Australia. At best APHRA could be a "care of" mailing address.

What happened in this case?

1. On the material that we had, it was uncontroversial that the Practitioner had been charged on 18 July 2019 and that written notice was required by 25 July 2019. Page 20 of Exhibit 1 indicates a news article about the Practitioner being charged and getting bail was published on 19 July 2019. The Chiropractic Council of New South Wales contacted the Practitioner on 23 July 2019 giving notice of the s 150 hearing scheduled on 30 July 2019 and the s 150 hearing took place on that day. The Chiropractic Council is a different body from both the National Board and APHRA. It is not the National Board as prescribed under Regulation 4.
2. The Practitioner asserted that he had met with the regulatory authority within the seven day period. We are satisfied that the meeting to which the Practitioner refers was the s 150 hearing conducted by the Chiropractic Council which took place just outside the seven day period. The Practitioner asserted that one of the persons present at the s 150 hearing was also a member of the National Board. It appears that one of the delegates at the s 150 hearing may also have been a board member of the National Board but was not attending the s 150 hearing in that capacity.
3. The Practitioner accepts that he had not provided any written notice to the National Board, but emphasises the fact that he had been contacted by the Chiropractic Council within the seven day period from being charged and assumed that that was sufficient.
4. The other matter of relevance was that in opening written submissions the Applicant indicated that whilst the Practitioner's failure to provide written notice of the criminal charges, which were serious in nature, warrants disapproval, the Applicant did not seek any protective order arising from a finding of unsatisfactory professional conduct, but rather submitted that the publication of the finding itself would be sufficient to meet the purposes of individual and general deterrence.
5. The Practitioner had served the Applicant with a notice to produce all records that were relevant to his assertions about Complaint One. The Applicant had not produced any documents in response to that request. The Practitioner foreshadowed that he wished to make an adjournment application of the whole hearing because no documents had been produced and if any were to be produced then he would need time to look at them.
6. Given all those circumstances and in particular the possibility that the proceedings would not be able to continue and would need to be adjourned, we suggested to the Applicant that Complaint One be withdrawn. The Applicant sought instructions and then did so.

Costs

1. The Applicant seeks an order that the Practitioner pay the Applicant's costs as agreed or assessed. The Tribunal has the discretion to make such an order. Costs are awarded to compensate the successful party. As a general rule, costs in proceedings before the Tribunal should follow the event.
2. On the question of cost, the Practitioner has tendered material setting out his current impecuniosity brought about by the fact that he has been in prison since March 2022. Mere impecuniosity is not a justifiable reason for departing from the general rule (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46]).
3. There was discussion as to whether there should be some reduction in costs due to the withdrawal of Complaint One. Given the circumstances in which the complaint was withdrawn, in our view the Applicant took a very pragmatic and cost effective approach to Complaint One which on its face would have been upheld from a technical point of view because of the actual lack of any written notice and the fact that the Practitioner thought he had to inform AHPRA when he needed to inform to the National Board. In addition, Complaint One was a very small part of the overall complaints against the Practitioner and in those circumstances we do not think it's appropriate for there to be any reduction in the cost order arising from the withdrawal of Complaint One.
4. There is otherwise no disentitling conduct by the Applicant to warrant a departure from the general rule.
5. Accordingly, the Applicant should be awarded its costs.

Non-Disclosure

1. It was agreed that non-disclosure orders be made both in relation to Patient A and the Practitioner's wife.

Orders

1. The Applicant did not pursue an application for an additional order, originally sought in the Application, prohibiting the Practitioner from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for five years.
2. The orders that we make are as follows: 1. The registration of Dr Riaz Behi be cancelled, pursuant to s 149C(1)(c) of the Health Practitioners Regulation National Law (NSW) (the National Law) with a 5 year non-review period from the date of this order. 2. The Respondent pay the Applicant's costs under clause 13 of schedule 5D of the National Law as agreed or assessed. 3. Under clause 7 of schedule 5D of the National Law, the name and address of the victim of the Practitioner's criminal offences, referred to in these reasons as Patient A, not be disclosed. 4. Under clause 7 of schedule 5D of the National Law, the name and address of the Practitioner's wife not be disclosed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2025