Health Care Complaints Commission v Cao [2026] NSWCATOD 46;

(1) cancelling the practitioner's registration pursuant to s 149C(1)(c) of the National Law with a non-review period of between three to five years, on the basis that the circumstances of the offences render the practitioner unfit in the public interests to practise the profession of optometry;

(2) a prohibition order prohibiting the practitioner from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for the same period as any non-review period imposed; and

(3) an order that the practitioner pay the Commission's costs as agreed or assessed.

1. For the reasons set out herein, we have decided that the complaints are proven. We decided to cancel the practitioner's registration, because the circumstances of the offences render him unfit in the public interests to practise optometry, with a non-review period of five years.
2. We prohibit the practitioner from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for five years.
3. We also ordered that the practitioner pay the Commission's costs, as agreed or assessed, in accordance with clause 13 of Schedule 5D to the National Law.

1. The practitioner graduated from university in 2018 and was registered as an Optometrist on 4 January 2019.
2. On 25 July 2023, the Optometry Council of NSW (the Council) received a complaint by way of a "notice of certain events" submitted to the Australian Health Practitioner Regulation Agency (AHPRA). In this document, the practitioner disclosed to AHPRA that he had been charged, on 19 July 2023, with several offences relating to the possession of child abuse and bestiality material.
3. The practitioner's registration was indefinitely suspended on 4 August 2023.
4. On 23 April 2024, the Office of the Director of the Public Prosecutions (ODPP) determined to prosecute the practitioner summarily on the following charges:

(1) on 9 May 2023, at New Lambton in the State of New South Wales, the practitioner did possess child abuse material on an Apple iPhone pursuant to s 91H(2) of the Crimes Act 1900 (NSW);

(2) on 9 May 2023, at New Lambton in the State of New South Wales, the practitioner did possess child abuse material on a Dell desktop computer pursuant to s 91H(2) of the Crimes Act 1900 (NSW);

(3) on 9 May 2023, at New Lambton in the State of New South Wales, the practitioner did possess child abuse material on a Samsung storage device pursuant to s 91H(2) of the Crimes Act 1900 (NSW).

1. On 24 April 2024, the practitioner pleaded guilty to each offence. The circumstances of the offence are set out in a Statement of Agreed Facts (Exhibit A1, p 85).
2. Due to the confronting and abhorrent nature of the contents of that document, we will not set out any details contained in it, beyond those which are necessary and are set out later in the Reasons for Decision. The practitioner signed the document on 24 April 2024. His legal representative, Justine Matthews, from Hall Payne lawyers, wrote to the Registrar of this Tribunal on 11 December and said:

"The Respondent does not intend to attend the hearing of this matter. We confirm that the Respondent will not contest the subject matter of the complaint and ...will not oppose the orders sought.... "

1. We infer from the foregoing that the practitioner agrees that the contents of that document are accurate.
2. On 14 August 2024, the practitioner was convicted and sentenced to an aggregate term of three years imprisonment, with a non-parole period of 18 months. The practitioner lodged appeal against the severity of his sentence in the District Court. On 2 December 2024, the appeal was upheld. The practitioner's overall sentence was reduced to two years and six months, with a non-parole period of 13 months.
3. The practitioner's earliest parole date was 13 September 2025. The sentence is due to expire on 13 February 2027.

1. These proceedings are proceedings under the National Law, which is the enabling legislation.
2. Sections 3 and 3A of the National Law set out the objectives of the National Law. In summary, those objectives are to establish a national registration and accreditation scheme for the regulation of health practitioners and students undertaking programs of study that provide a qualification for registration in the health profession and other things.
3. Section 3(2) of the National Law provides that one of several objectives of the national registration and accreditation scheme is:

(a) 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...

1. The guiding principle in New South Wales is set out in s 3A of the National Law. Most relevantly, subsection (1) provides:

The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

1. Section 144(b) of the National Law provides that the complaints may be made that a registered health practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
2. Pursuant to s 145D of the National Law, the Commission is obliged to refer the complaint to the Tribunal, if it has formed the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the practitioner's registration.
3. The Tribunal disciplinary powers are set out in subdivision 6 of the National Law. Section 149 provides that:

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if -

(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or

(b) the practitioner or student admits to it in writing to the Tribunal.

1. Section 144(a) of the National Law provides that a complaint may be made about a health practitioner on the basis that the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in this jurisdiction or elsewhere.
2. The Tribunal must determine three things in relation to each complaint:

(1) whether the complaint is proven;

(2) if proven, whether protective orders should be made; and

(3) whether to make a costs order.

1. The Tribunal considered the following documents tendered by the Commission:
2. Exhibit 1 - Health Care Complaints Commission Material (214 pages);
3. Exhibit 2- Evidentiary certificate; and
4. Exhibit 3- Affidavit of Hannah Majella Panizutti, dated 10 March 2026.
5. We also considered the Commission's written submission, dated 17 February 2026, as well as the oral submissions made by the Commission's representative at the hearing.
6. The practitioner did not attend the hearing and did not submit any evidence or make submissions.

1. The hearing was conducted on 10 March 2026.
2. The applicant was represented by Ms M Wallis, of counsel.
3. The practitioner did not appear.

1. In the absence of the practitioner, and for the reasons set out earlier, we infer that the practitioner agrees with the facts detailed in the Statement of Agreed Facts (Exhibit 1, pp 85-90).
2. This statement records that in November 2022, when the practitioner was 28 years of age, the Child Protection Triage Unit received a report from the National Centre for Missing and Exploited Children that the practitioner uploaded child abuse material to the Google Drive "infrastructure".
3. NSW Police determined that the relevant Google account and associated phone number resolved to the practitioner. NSW Police obtained a digital access order and search warrant. On 9 May 2023, they conducted a search of the practitioner's premises. The practitioner and his wife were both present. Seventeen items were seized including a Dell laptop computer, an Apple iPhone 13 Pro Max, and a Samsung portable hard drive.
4. The Apple iPhone contained 530 video files. 500 of these fell within category 1 of the Australian Child Abuse Categorisation Schema (ACACS) for assessing the category of child abuse material (CAM). (The definition of category 1 and category 2 CAM according to ACACS is found at Exhibit 1, p 118). Only 10 of those 500 files were detailed in the Statement of Agreed Facts. Those details include videos of prepubescent females being sexually assaulted by adults in a variety of ways. The details are confronting and distressing.
5. The Dell laptop computer was found to contain several thousand files and videos constituting categories 1 and 2 of the ACACS. Again, only 10 of those videos were selected at random, and described in the Statement of Agreed Facts. These files are even more confronting and distressing. They include files of sexual abuse against toddlers and children. In one instance, the video involved necrophilia.
6. The practitioner's Samsung portable hard drive contains 530 files. Eighty of them were categorised as child abuse material. Given the graphic and voluminous nature of the content reviewed on the other devices, NSW Police assigned a different officer to examine this device. Ten of those 80 files are highlighted in the Statement of Agreed Facts. They have been analysed and categorised as categories 1 and 2 child abuse material as defined by ACACS. They can be generally described as containing videos of the abuse of children.
7. It is not contested that the practitioner pleaded guilty. The sentencing assessment report was conducted by Gemma Loader, Community Corrections Officer on 28 May 2024 (Exhibit 1, pp 97-101). Ms Loader referred to the pre-sentence consultation case note authored by psychologist, Jennifer Barton, on 3 June 2024 (Exhibit 1, p 95). The practitioner told Ms Loader that he commenced watching "shocking" material on "gore" websites as a teenager. These sites included material depicting serious violence, such as beheadings. He said he did this in his spare time "for fun".
8. Ms Loader felt that the practitioner appeared to normalise his offending, by his suggestion that sending obscene material was quite common for boys during his school years. He added that he then began searching for "taboo" material. This behaviour escalated over time. He denied consuming child abuse material for sexual gratification. Rather, he claimed it was motivated by his desire for shock value. He described his offending to Ms Loader as "a habit". He claimed that he did not realise the gravity of the offences at the time.
9. Ms Loader recorded: "He did acknowledge that he was hiding the offences from his wife as part of him was aware that it was wrong". She added that he has "since become aware it is not a victimless crime".
10. The practitioner provided a similar history to Mr Machlin, psychologist, who wrote a report dated 5 July 2024 (Exhibit 1, p 102). He added that he had intended to delete the material or by "consolidating the material onto a single hard drive...to get rid of it, it would feel like it was gone'". The practitioner told Mr Machlin that he lacked the opportunity to do so, because his wife was nearly always present when he was at home.
11. Mr Machlin concluded that the practitioner's exposure to vast amounts of material caused him to become desensitised to the graphic nature of that material at a young age, before his moral sensibilities were developed.
12. Mr Machlin added that the practitioner demonstrated a high level of remorse, through his communication, contrition, capacity to empathise with the victims, and willingness to undergo treatment. He wrote that the practitioner presents a low risk of reoffending and recommended a program of psychological treatment focusing on child abuse material. For reasons set out later, we do not attribute weight to that opinion.
13. It is not contested that the practitioner was arrested on 19 July 2023 and refused bail. He remained in custody for two days and was then granted conditional bail until his trial in the Local Court, which occurred on 14 August 2024.
14. He was convicted and sentenced to eighteen months imprisonment for each of the three sequences in the charge. The cumulative sentence was a custodial sentence of three years with a non-parole period of 18 months.
15. The practitioner appealed the severity of his sentence. His Honour Judge Pickering reduced the cumulative sentence to 2.5 years and the non-parole period to thirteen months.
16. The practitioner did not give evidence in his trial. He was due for parole on 13 September 2025 and remains the subject of a custodial sentence.

1. The Commission makes two complaints against the practitioner. That which is pleaded as the second complaint essentially constitutes the particulars of complaint one. What follows is the outline of the complaint, the practitioner's response in so far as it known, and our consideration and findings.

1. The Commission submits that the Tribunal should be comfortably satisfied that the complaint that the practitioner has been convicted of a crime has been proven.
2. This is proven by the material from the Local Court of NSW proceedings and the fact that the practitioner pleaded guilty and was convicted of each charge. The District Court of NSW proceedings varied only the severity of the cumulative sentence.
3. We are satisfied that two superior Courts have found that the practitioner committed the offences for which he was charged. In each of those proceedings, the Courts applied the criminal standard of proof, which requires satisfaction beyond reasonable doubt, a significantly more stringent standard than applied in this Tribunal.
4. The practitioner has not appeared nor submitted anything to suggest that we should not find that the practitioner committed the offences and was convicted.
5. We are satisfied that each particular of the complaint is proven.

1. Having found the complaint established, the Tribunal must now consider whether the circumstances of the offences for which the practitioner has been convicted render him unfit in the public interest to practice his profession.
2. To determine whether the circumstances of the criminal offences, for which the practitioner was convicted, render him unfit in the public interest to practice optometry, we have considered the circumstances of the offences, as set out in the agreed facts, and the sentencing remarks of Her Honour Magistrate Towney, and the submissions and material submitted.

1. The term "public interest_"_ is not defined in the National Law. The term was considered in the matter of Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708, in which the Court held that the "public interest" is a broader concept than the protection of the health or safety of the public.
2. In that matter, Her Honour Associate Justice Harrison cited Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [18] and stated at [32]:

"...the 'public interest' referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the 'competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession'...".

1. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 (Grygiel), Deputy President Boland (ADCJ) at [151] considered that the authorities emphasised several matters relevant to the consideration of "public interest" including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them".
2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Baston JA noted:

"...The purpose of any order made upon a finding that the complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so...".

1. It is clear, therefore, that we must consider factors that go beyond any risk posed to patients or customers of the practitioner, including public confidence in the integrity of the high standards required of health practitioners. Whether a practitioner is unfit in the public interest will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated. Those circumstances can extend to the factual background and the impact of the conviction on the respondent in terms of any insight, contrition, and remorse: See Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
2. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 (Limboro) at [22], the Tribunal held that:

"...[C]riminal conduct is a distinct factor when determining suitability to practice, which must be assessed in light of a holistic enquiry 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 since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practice, within a legislative framework of public protection, in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining professional standards, and...public confidence in the health professions". (emphasis added)

1. We considered the factors set out in AHPRA's Registration Standard - Criminal History (1 July 2015) (Exhibit 2, p 36). As matters which may guide the Tribunal, the relevant factors include:

(1) the nature and gravity of the offence or alleged offence and its relevance to health practice;

(2) the period of time since the health practitioner committed or allegedly committed the offence;

(3) whether a finding of guilt or a conviction was recorded for the offence and a charge for the offence is still pending;

(4) the sentence imposed for the offence;

(5) the ages of the health practitioner and any victim at the time the health practitioner committed or allegedly committed the offence;

(6) ... (deliberately omitted);

(7) the health practitioner's behaviour since he or she committed or allegedly committed the offence;

(8) the likelihood of further future threat to a patient of the health practitioner;

(9) any information given by the health practitioner;

(10) any other matter that the Board (in this case, the Tribunal) considers relevant.

1. To the extent that they are relevant to this matter, we set out our considerations hereunder.

1. The crimes of which the practitioner has been convicted are objectively abhorrent and extremely serious. They are so serious that they attracted a custodial sentence.
2. Her Honour Magistrate Towney (Exhibit 1, p 183) found that "there are no doubt thousands, quite literally thousands of victims, children who have been abused".
3. In the District Court, His Honour Judge Pickering SC found on 2 December 2024 "There is little doubt that the material is abhorrent and particularly serious examples of the offence. Indeed, it is difficult to think of videos that would really be that much worse". He noted that some of the videos include cruelty and physical harm to prepubescent children.
4. Each sequence of the offence for which the practitioner was convicted carries a maximum sentence of 10 years fulltime imprisonment. The sentencing Court rejected all alternatives and found that only fulltime imprisonment was appropriate in this instance. For each sequence, the practitioner was sentenced to 18 months fulltime imprisonment and an overall sentence of three years.
5. Her Honour Judge Williams in the District Court expressed the opinion, on 8 October 2024 (Exhibit 1, p 187), that the offences were so serious that she questioned why they were not tried as indictable offences in the District Court.
6. The practitioner's Counsel told the Court that this decision was made by the Crown as a result of negotiation and a plea agreement. This means that the practitioner pleaded guilty to the three offences in order to have them dealt with summarily. Her Honour Judge Williams found that the offences were so serious that she referred to the matter of Parker v DPP (1992) 28 NSWLR 282, which requires a Judge to warn an appellant where the Judge is contemplating increasing the sentence during a severity appeal.

1. The Tribunal must consider "whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession" (Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93]) and that it is not necessary for a nexus to be established between the criminal offence and the practice of that profession.
2. The Tribunal has previously held that it is not necessary for a nexus to be established between the criminal offence and the practice of that profession.
3. In Health Care Complaints Commission v Ruming [2024] NSWCATOD 77 at [71] the Tribunal held:

"It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role. Where an offence is not committed in the course of acting in the professional role, a nuanced approach to the public interest is required. Matters such as the extent to which the reputation and trust in the nursing profession is maintained and the wider community interests in the ethical standards expected of health professionals will come to the fore. Health care professionals should be committed to the ethics of health care in having a responsibility to ease human suffering. Not cause it or be complicit in it".

1. The AHPRA Code of Conduct pertaining to Optometrists (Exhibit 1, p 216) sets out professional values and qualities that are required of an Optometrist. This includes a requirement that the practitioner must be "trustworthy". Practitioners are required to "display a standard of professional behaviour that warrants the trust and respect of the community".
2. A health practitioner must be and be seen to be a safe, ethical, and professional person for the protection of the health and safety of the public. As an Optometrist, it is probable that the practitioner's patients would include children. Parents and guardians of children, in particular, are unlikely to have confidence that their children would be protected from harm if the practitioner were registered to practice his profession.
3. The practitioner's conduct may also adversely affect his capacity to respond to child abuse issues that he might encounter in the course of his professional life.
4. We are satisfied that the possession of child abuse material, by a health practitioner, no matter where it takes place, is conduct that adversely impacts the trust and confidence the public will place in practitioners.
5. The possession of extreme child abuse material is a gross departure from the ethical standards expected of health practitioners. When a registered health practitioner possesses child abuse material, a regulatory response is required to ensure the health, safety, and protection of the public.
6. We are satisfied that the practitioner's serious conduct has a high degree of relevance to the execution of his duties as an Optometrist.

The period of time since the health practitioner committed the offence

1. The offence in which the practitioner was convicted was the possession of child abuse material, which he still did when he was arrested in 2023. Therefore, only three years have elapsed since the offence was committed.
2. Her Honour Magistrate Towney did not accept the practitioner's submission that he uploaded the child abuse material while he was still at university. This is because the practitioner finished university in 2018, and the material was downloaded between November 2022 and April 2023. Her Honour (Exhibit 1, p 183) criticised the practitioner for giving a false statement about when he downloaded the child abuse material and the fact that he has told people that he "stopped doing it years ago". Her Honour Magistrate Towney found "that is quite simply not true".

Conviction and the sentence imposed for the offence

1. The practitioner was convicted of three sequences of possessing child abuse material, on an Apple iPhone, Dell desktop, and Samsung storage device.
2. He was initially convicted to 18 months for each sequence (with a combined sentence of three years and non-parole period of 18 months). The sentences for each sequence were not reduced on appeal. However, the combined sentence was reduced to two years and six months and the non-parole period reduced to 13 months.

The practitioner's age and the age of his victims

1. Although there was no direct victim, the practitioner's conduct supports an industry which involves the abuse, torture, and sometimes death of children and young people. It is uncontested that actual children were used in the creation of the material, as opposed to artificially created content. The children were of the ages of two to 13 years.
2. At the time of the offences, the practitioner was between 26 and 28 years old.

The health practitioner's behaviour since he committed the offence

1. There is scant evidence about the practitioner's behaviour since he committed the offence. He pleaded guilty, after having apparently accepted a plea bargain, and did not give evidence at his trial. He appealed the severity of the sentence. All of these things he was entitled to do.
2. A report dated 12 September 2024, of Dr Li Lian Kho, Clinical Psychologist, (Exhibit 1, p 136) records that the practitioner voluntarily sought psychological treatment and had attended three sessions prior to his incarceration. The practitioner was eligible for parole in September 2025. He has not submitted any evidence to inform the Tribunal about whether he has engaged in any further remedial treatment or therapy, during or since his incarceration.
3. The only other information that we have available about the practitioner's conduct since the offences is that which is contained in the sentencing report (Exhibit 1, p 97) and the history he gave to John Machlin, Clinical Psychologist, as set out in the Psychologist's report, dated 5 July 2024 (Exhibit 1, p 102).,
4. The material suggests that, having been charged, and facing sentencing, the practitioner gave a partially unreliable history to the psychologist who interviewed him. By way of example, the practitioner said that he did not realise the seriousness of his conduct at the time he downloaded the child abuse material.
5. We agree with Her Honour Magistrate Towney that "there is no way that the Court can reconcile the fact that (the practitioner is) intelligent, hardworking, from a good family, in a stable environment with (his wife) but (he) did not understand that this was abuse". The Court did not accept that submission and neither do we.
6. Her Honour Magistrate Towney also found that the practitioner's contention that he intended to delete the content but was unable to do so lacked credibility. She found it "quite literally unbelievable". She said: "The defendant was able to download 35,000 videos and images of child abuse but says that he was unable to delete them due to not being alone in the house". We are of the same opinion as Her Honour.
7. The material available points to a lack of candour on the part of the practitioner and does not permit us to be reasonably satisfied that the actions of the practitioner since the offence demonstrate sufficient commitment to address his offending behaviour.

1. We take "future threat" to mean the risk that the practitioner could engage in similar conduct to that for which he was convicted in future. The risk is to be assessed at the time of the hearing. The circumstances in which the offence occurred, and the actions of the practitioner since the offence, are relevant to the risk assessment. We considered the history provided to the psychologists who prepared reports and the submissions made by the practitioner's representatives in the sentencing courts.
2. In Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505; [1985] HCA 58, the High Court of Australia held that for expert medical opinion to be of any value, the facts upon which it is based must be proved by admissible evidence. The majority wrote at [9]: "It is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value" accords with both principle and common sense.
3. In Lang v The Queen [2023] HCA 29, the High Court held that expert opinions must be more than authoritative assertions but must be grounded in specialist knowledge and clearly reasoned from identifiable facts.
4. We have reviewed the material that was submitted to the Local Court, including the report of psychologist John Machlin, the risk assessment of Jennifer Barton, and the report of Dr Li Lian Kho. They have assessed the practitioner as representing a low risk of re-offending. However, we attribute little weight to their conclusion for several reasons.
5. Our assessment of the credibility of the history provided by the practitioner aligns with the view of the superior Courts who considered this issue. Magistrate Towney was critical of the practitioner and found that elements of his history were untrue. We also do not accept that the history provided by the practitioner to the Psychologists was entirely credible.
6. The authors of the risk assessments appear to have accepted the practitioner's account that he was initially unaware of the seriousness of his conduct and that this only occurred later to him. The practitioner is clearly an intelligent man, because he has qualified as a health professional. It is implausible in the extreme that he did not realise, at the time of his offence, that his conduct was abhorrent in the eyes of society, illegal, and harmful to children.
7. For reasons expressed above, we respectfully agree with the sentencing Magistrate and do not accept the practitioner's version of events. This is one element that undermines the weight we attribute to the risk assessment in the reports submitted to the sentencing courts.
8. We also do not accept that the practitioner was prevented from deleting the material, due to the presence of his wife in the family home, when it was found that the material was downloaded during such times. It is also significant that Her Honour Magistrate Towney did not accept the practitioner's submission that he did not derive sexual gratification from his offending conduct.
9. The Psychologists have apparently relied on the history provided. It is reasonable to assume that their assessment of the practitioner's likelihood of reoffending has been influenced by those assumptions. It follows that we are not satisfied that the Psychologists' assumptions are consistent with what has been found by the superior Courts. This significantly undermines the weight that we can give to those reports when assessing the likelihood of a further future threat.
10. The practitioner's statements do not demonstrate insight into the seriousness of his offence. Rather, they are an attempt to minimise it. He has submitted no evidence of remedial measures taken to reduce the likelihood of re-offending. There is no medical evidence or recent risk assessment. The reports available are no longer current and, as we have found, do not provide assessments that we can rely upon. We cannot discern the practitioner's current state of mind.
11. We note the opinion of Mr Machlin that the practitioner was desensitised to shocking material, because he had developed the habit of viewing "gore" material at a very impressionable age (year eight at school). We also note that the practitioner offered this history by way of an explanation for his offending. He said that he was seeking taboo material. There is nothing available to suggest that this desensitisation or desire to access taboo material has been successfully remediated. We also observe that the sentencing magistrate did not accept that the practitioner was not motivated by sexual gratification to offend. This possibility has not been sufficiently negated in our view.
12. We can, therefore, have very little confidence that he will not reoffend. We are satisfied that there is a likelihood, greater than that which applies to a man, of the practitioner's age who has not been convicted of possessing child abuse material, that the practitioner will reoffend.

1. The only information given the practitioner is that which is contained in the sentencing report and the history he gave to John Machlin. We have addressed the effect of that information elsewhere.

1. Having considered the evidence, we have found that the offence was extremely serious. The Tribunal must determine whether the particular circumstances of the offence render the practitioner unfit, in the public interest.
2. The conduct of the practitioner is manifestly against the public interest. He has acted unlawfully. The gravity of the offence is a factor that weighs in favour of but is not necessarily sufficient, in isolation, to support a finding that the practitioner is unfit in the public interest to practice optometry.
3. In accordance with the principles in Limboro at [22], the criminal conduct is only one factor we must consider. We must also assess "the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events".
4. We must uphold the health and safety of the public as the paramount consideration. Limboro and other authorities make it clear that public protection includes considerations of individual deterrence, the risk of repetition, the setting and maintaining of professional standards, and maintaining public confidence in the health professions.
5. Deputy President Boland ADCJ commented in Grygiel at [151] that the public interest includes "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them".
6. The practitioner's ethical obligations extend to taking reasonable remedial measures. There is no evidence available to us to suggest that the practitioner has engaged in any remedial measures, since his release on parole.
7. In this matter, we find that the circumstances of the offence include the fact that the practitioner downloaded thousands of files containing child abuse material over a period of time, during which he was cohabiting with his wife. Although he denied understanding the severity of the material, he does not deny that he hid this conduct from his wife.
8. The downloading and possession of any child abuse material is a gross departure from the standards of conduct expected of an optometrist and is highly relevant to the practitioner's suitability to practise. In this case, the material was deemed by the Court to be some of the most serious examples of its kind.
9. The circumstances of the offence also include the fact that the practitioner, by his own account, commenced viewing material that would be considered by the community to contravene public notions of decency and morality, such as "gore" videos, at a very young age, and that he became desensitised to such material. This fact was offered as a partial explanation for the motivation for his offence.
10. This, combined with the practitioner's statements to the sentencing court, found to be untrue by the Magistrate, undermines public confidence that the practitioner is a fit person to practice as, or one who upholds the ethical requirements required of a health professional. The public has an interest in ensuring that only persons who are fit to practice are registered to practice as health professionals.
11. We are satisfied that the circumstances of the offence render the practitioner unfit in the public interests to practise as a pharmacist.

1. The Commission seeks the cancellation of the practitioner's registration with a non-review period of three to five years.
2. Under s 149 of the National Law, the Tribunal has disciplinary powers with respect to a registered health practitioner, if a complaint is proven, as it is in this case.
3. Section 149C(1) of the National Law provides:

(1) 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 -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the 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 ...

1. Section 149C(7) of the National Law provides that an order may also be made prohibiting an application for review of the order under Division 8, until after a specified time.
2. The powers to suspend or cancel the practitioner's registration are enlivened, because we have determined that the circumstances of the offences for which he has been convicted render him unfit in the public interest to practice as an optometrist.
3. The Tribunal is required, in the exercise of its function under the National Law, to consider the objectives and guiding principles of the National Registration and Accreditation Scheme, set out in Section 3. The paramount consideration is the protection of the health and safety of the public (National Law Section 3A).
4. The determination may only be made by reference to the facts before the Tribunal and by considering what measures are needed to ensure that the practitioner's future behaviour is consistent with the protective goals.
5. The power to make any order is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], the Court of Appeal, citing Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83], said:

1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist."

1. In Health Care Complaints Commission v Chau [2015] NSWCATOD 25 at [132] and Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [309]- [311], it has been held that the most relevant issue for the Tribunal is to consider the extent to which the practitioner poses a risk to the public.
2. The Commission seeks the cancellation of the practitioner's registration, with a non-review period of between three to five years. The Tribunal's jurisdiction is protective. The Tribunal is mindful that its purpose is not punitive and that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101].
3. In the Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court highlighted the importance of denunciation of misconduct:

"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risks of his or her malpractice or incompetence. It includes protecting the public from the...misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners. It also maintains confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise".

1. We are satisfied that when registered health practitioners commit an offence as serious as that committed by this practitioner, a protective order is required to ensure the health, safety, and protection of the public.
2. We have found the practitioner unfit in the public interests to practice. His criminal offending demands denunciation in unambiguous terms. The public must have confidence that practitioners are held to a high standard of moral and ethical behaviour, with which the downloading and possession of child abuse material is inconsistent. In our view, suspension is insufficient to achieve that goal in this case.
3. We are satisfied that it is appropriate that the practitioner's registration be cancelled.

1. The offences for which the practitioner was convicted are amongst those considered most abhorrent by the community. The downloading and possession of child abuse material supports an illegal market that exploits and causes harm to children, babies, and other vulnerable persons. A health practitioner has a duty to protect the safety and wellbeing of vulnerable persons.
2. In the case of a practitioner who has breached that obligation so egregiously we are satisfied that a long non-review period is appropriate. Only this will serve as an adequate denunciation and deterrent to others who may seek to engage in similar behaviour, and will promote public confidence in the profession.
3. Consistent with the obligation to impose an order which is no more punitive than necessary, and to uphold public confidence, we decided that the practitioner should not be able to make any application for review of the cancellation of his registration for a period of five years.

1. Section 149C(5)(a) of the National Law permits the Tribunal to prohibit the person from providing specified health services for a specified period (a prohibition order).
2. The Commission asks us to impose a prohibition order. It submitted that, on 4 August 2023, during the section 150 proceedings, the practitioner indicated that he would like to obtain employment, perhaps in aged care facilities, or by providing home visits, partly in the field of optometry. He said he has a wife and two young children that he wishes to financially support.
3. We do not know whether the practitioner is presently engaged in any remunerative employment.
4. The affidavit of Hannah Panizutti, dated 10 March 2026 (Exhibit 3) attests that New South Wales police, in response to a request dated 13 February 2026 enquiring as to whether the practitioner is a registered person under the Child Protection (Offender Registration) Act 2000 (CPOR Act), responded that they would not disclose that information unless the Commission could identify an applicable exemption, pursuant to s 21E of the CPOR Act. Because no such exemption applies, the Commission has been unable to ascertain whether the practitioner is registered on the Sex Offender Register. The sentencing court did not clearly identify whether the practitioner was placed on that Register.
5. The Commission submits that, if we were satisfied that the practitioner poses a risk to persons with disability, there is a need for a prohibition order, preventing him from obtaining employment in a health profession, for the duration of the non-reviewable non-review period.
6. We have made a finding to that effect. We are satisfied that it is necessary for the protection of the public, and to uphold public confidence in health professions, that the practitioner is prohibited from working in a health-related profession for five years.

1. The Commission seeks an order that the practitioner pay its costs. The practitioner made no submissions in relation to this application.
2. The Tribunal has the power to award costs, as specified in the National Law (clause 13 of Schedule 5D). Awarding of costs is a discretionary matter. The discretion must be exercised judicially. As a general rule, costs follow the event, which means that the successful party should be compensated for the expenses it has incurred. A costs order is not intended to be punitive.
3. These principles are relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]- [44].
4. In this instance, the Commission has been successful and there is no evidence of any disentitling conduct by the Commission.
5. Accordingly, the Commission is entitled to a costs order in its favour.
6. The practitioner is to pay the applicant's costs as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) pursuant to clause 13 of Schedule 5D to the National Law.

(1) The complaint that the practitioner was convicted of a criminal offence in New South Wales is proven.

(2) The practitioner's registration is cancelled pursuant to s 149C(1)(c) of the National Law with a non-review period of five years.

(3) The practitioner is prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for the same period as the non-review period imposed.

(4) The practitioner is to pay the Commission's costs pursuant to clause 13 of Schedule 5D of the National Law.

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.