Health Care Complaints Commission v Estilo

REPLY TO THE COMPLAINT

1. The Respondent filed a response to the Complaint as follows: "COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of criminal offences In NSW. REPLY This complaint is admitted.

PARTICULARS OF COMPLAINT ONE 1. On 25 February 2021, the practitioner was charged with one offence of "sexually touch another person without consent" contrary to s 61KC(a) of the Crimes Act [1900] ("the first Offence"). The charge alleged that on 21 January 2021, at Goulburn, the practitioner sexually touched the victim on the vagina with his fingers without her consent, knowing she was not consenting. REPLY This particular is admitted.

2. On 25 February 2021, the practitioner was charged with one offence of "sexually touch another person without consent" contrary to s 61KC(a) of the Crimes Act [1900] ("the second Offence"). The charge alleged that on 21 January 2021, at Goulburn, the practitioner sexually touched the victim on the vagina with his penis without her consent, knowing she was not consenting. REPLY This particular is admitted.

3. On 26 November 2021, at Goulburn Local Court, the practitioner was convicted of the first and second offences. REPLY This particular is admitted.

4. The practitioner was sentenced to an aggregate term of 11 months' imprisonment to be served by way of an Intensive Corrections order. REPLY This particular is admitted."

NATURE OF THE JURISDICTION

1. The nature of the jurisdiction of the Tribunal is to protect the public and to maintain proper standards in the profession of nursing. The effect of any decision is not to punish the Respondent.
2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 202; [1960] HCA 40, the High Court said: "Although it is sometimes referred to as "the penalty of disbarment" it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."
3. Section 3B of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The interests of the public includes patients or potential patients of the Practitioner concerned.
4. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order consequent upon a finding that a 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 … 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. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
5. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3B of the National Law.

THE ISSUES

1. On 25 February 2021, the Respondent was charged with two offences of sexually touching another person without consent in relation to an alleged incident on 21 January 2021.
2. The Certificate of Conviction in the Local Court of New South Wales at Goulburn dated 26 November 2021 (Exhibit 1 Tab 21) is set out below. Case R v ANTHONY ESTILO I, Bernadette Hilton, Registrar, certify that:- Certification On 24 Nov 2021 the offender was convicted of the specified charge(s) and On 24 November 2021 at Goulburn, Magistrate G Beattie made the following orders in relation to the specified charge(s):- 2021/00054097-003 Seq 3 - Actual offence - Sexually touch another person without consent-T2(Appeal Pending) Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/01/2021 at GOULBURN. did sexually touch the victim], knowing she was not consenting 2021/00054097-002 Seq 2 - Actual offence - Sexually touch another person without consent-12 (Certified)(Appeal Pending) Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/0112021 at GOULBURN. did touch the victim; … on the vagina The offender, ANTHONY ESTILO, is sentenced to an aggregate term of imprisonment of 24 months to commence on 24 November 2021 and expiring on 23 November 2023 with a non-parole period of 15 months. The offender is to be released to parole on 23 February 2023. Sentence The Indicative Term for 2021/00054097-002 (H78713350/2/9039822) is 15 months. The Indicative Term for 2021/00054097-003 (H78713350/3/9492044) is 15 months.

Signed Bernadette Hilton Registrar Date 26 November 2021

1. The Certificate of Conviction on appeal to the District Court of New South Wales at Goulburn dated 8 February 2022 (Exhibit 1 Tab 25C) is set out below. Case R v ANTHONY ESTILO I, Bernadette Hilton, Registrar, certify that:- Certification On 24 Nov 2021 the offender was convicted of the specified charge(s) and On 2 February 2022 at Goulburn, Judge M Williams made the following orders In relation to the specified charge(s):- 2021/00054097-002 Seq 2 - Actual offence - Sexually touch another person without consent-T2 (Certified) Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/01/2021 at GOULBURN. did sexually touch the victim, … on the vagina Directions Sentence 1. The orders in the matter of R-v- Anthony Estilo dated 1 February 2022 were made contrary to s14(2)(b) of the Crimes (Sentencing Procedure) Regulation 2017. which requires term greater than 12 Months for an intensive corrections Order which imposes a community Service work condition greater than 100 hours. 2. With the consent of the parties, the matter is re‑opened pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999 and the number of hours of community service work outlined in order 7(e) is reduced to 100 hours. 3. Subject to the amendment outlined by order 2, the severity appeal orders dated 1 February 2022 are confirmed.

2021/00054097-003 Seq 3 - Actual offence - Sexually touch another person without consent-T2 Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/01/2021 at GOULBURN. did sexually touch [the victim], knowing she was not consenting Directions Sentence 1. The orders in the matter of R-v- Anthony Estilo dated 1 February 2022 were made contrary to s14(2)(b) of the Crimes (Sentencing Procedure) Regulation 2017. which requires term greater than 12 Months for an intensive corrections Order which imposes a community Service work condition greater than 100 hours. 2. With the consent of the parties, the matter is re‑opened pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999 and the number of hours of community service work outlined in order 7(e) is reduced to 100 hours. 3. Subject to the amendment outlined by order 2, the severity appeal orders dated 1 February 2022 are confirmed.

2021/00054097-002 Seq 2 - Actual offence - Sexually touch another person without consent-T2 (Certified) Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/01/2021 at GOULBURN. did sexually touch the victim, … on the vagina 2021/00054097-003 Seq 3 - Actual offence - Sexually touch another person without consent-T2 Act Number and Section: 40/1900, s 61KC(a) Date of offence 21 January 2021 Place of offence GOULBURN 2580 Between 2:00 am and 3:00 am on 21/01/2021 at GOULBURN. did sexually touch [the victim], knowing she was not consenting The offender, ANTHONY ESTILO, is sentenced to an aggregate term of imprisonment of 11 months to commence on 1 February 2022 and expiring on 31 December 2022. The term of imprisonment is to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999. No sentence discount recorded. Sentence This Intensive Correction Order is subject to the following standard conditions: a) The offender is not to commit any offence while subject to this Intensive Correction Order b) The offender must submit to supervision by a Community Corrections Officer. The relevant agency for the purposes of supervision Is Parramatta Community Corrections District Office. This Intensive Correction Order is subject to the following additional conditions: 1. The offender is to perform 100 hours Community Service Work. 2. The offender is to report to the OIC at the Parramatta office of CCS by 5pm, 7 February 2022. The Indicative Term for 2021/00054097-002 (H78713350/2/9039822) is 8 months. The Indicative Term for 2021/00054097-003 (H78713350/3/9492044) is 9 months.

Signed Bernadette Hilton Registrar Date 8 February 2022

1. The Certificates of Conviction are the only basis on which the Complainant has relied.
2. In light of the fact that the Applicant in its submissions to the Tribunal seeks a cancellation order with a two-year non‑review period to protect the public and relies on the conviction for stating that the Respondent is not a fit and proper person to be registered as a nurse, it appears that the main issue for the Tribunal is to determine whether, in light of the circumstances of the offence and the surrounding evidence contained in Exhibit 1 consisting of Tabs 1 to 43, the Tribunal is comfortably satisfied that the Respondent is not a fit and proper person to remain registered as a nurse.

APPLICANT'S EVIDENCE

1. The Applicant has in Exhibit 1 provided transcripts of s 150 hearings, statements made by the Respondent and various witnesses, and the transcripts of the hearing before the Magistrate in the Local Court of New South Wales dated 26 November 2021.

RESPONDENT'S EVIDENCE

1. The Respondent has provided a bundle of documents consisting of Tabs 1 to 12 which contain a reply to the Application for disciplinary findings and a reflection by the Respondent dated 22 November 2022 addressed to the Tribunal, as well as various statements and education undertaken during the period in which he has been suspended. The contents of the Respondent's reflection are set out below. "I am a Registered Nurse after completing a Bachelor of Nursing in 2017 at the University of Technology Sydney. My registration is currently suspended. My job as a nurse was at the Chisholm Ross Centre attached to Goulburn Base Hospital where I practiced as mental health RN. I reside in Goulburn NSW and I am on a 'Skilled Regional Sponsored visa (subclass 489)'. I met [the victim] via her brother who I played basketball with socially and had contact with her through friends on a few occasions prior to attending her 19th Birthday Party on the evening of 20 January 2021 at Quest Apartments Goulburn At the party we were drinking alcohol and playing party games such as "beer pong" and "truth or dare". After leaving the party, having consumed quite a number of drinks over the course of the evening, I messaged [the victim] asking if she would like me to return and help her clean up. After returning to the apartment, this is when the offending occurred. l now realise that there was no consent for me to touch [the victim] in an intimate way and that in any case she appeared too intoxicated to provide consent. I have read [her] victim impact statement and I deeply regret my offending and the impact that my offending has had on her. Since the offending l have stopped drinking and determined not to become intoxicated again in such a way so to impair my judgement. I take full responsibility for my offending and I am determined to abstain from alcohol and will avoid it. I am also aware of the need to a female to provide informed positive consent for intimate relations. l am also aware that laws about consent for sexual acts have been strengthened in NSW recently. I intend to fully abide by the laws for consent in future in all circumstances. I resigned my position as a RN after the offending effective September 29 2021, but acknowledge that had I not resigned I would rightfully have been terminated from my position with Southern NSW Local Health District. I understand that the impact that my offending has had on my career is my own fault and I am sorry for the hurt that I caused [the victim], her family, and friends and those also close to me, such as my family. I am deeply ashamed of my actions. I now work in retail at a service station to earn money to make a living. I wish to rebuild my life and remain in Australia if possible and regain the right practice [sic] as a RN. In future I will be very careful how I behave and conduct myself in both my personal and professional life. I will ensure that I behave in a way that is lawful and ethical at all times. I understand that the public have a right to hold nurses in the profession in high regard and I am sorry that my actions may have brought the profession into disrepute and I will ensure that this never happens again."

APPLICANT'S SUBMISSIONS

1. The Applicant has provided submissions to the Health Care Complaints Commission, listing a series of reasons why the Respondent is not a fit and proper person to be registered as a nurse. The Tribunal will deal with the Applicant's submissions in detail below. "Introduction 1. This matter is about a 33 year old registered nurse who was convicted of two offences of sexually touching a young woman ("Person A") during the early hours of her 19th birthday party. After Person A had said no, pushed him away and fallen asleep, the practitioner touched her vagina with his fingers without her consent. After she had pushed him away again and passed out, the practitioner rubbed his penis on her vagina without her consent. During the time of the conduct, the practitioner was employed as a registered nurse working in a mental health facility. The practitioner had no reasonable grounds for believing that Person A consented to the sexual activity. 2. This is an Inquiry into a Complaint made by the Health Care Complaints Commission ("Commission") to the Tribunal under sections 145C(1)(a) and 145D of the Health Practitioner Regulation National Law (NSW) ("National Law"). The relevant principles 3. The relevant principles include: a. the protection of public safety and health is paramount; [1] b. the Tribunal is not bound by the rules of evidence; [2] c. whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision-making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding; [3] d. the Tribunal is subject to rules of procedural fairness. [4] 4. In this combined hearing, there are three steps for the Tribunal: a. First, the Tribunal must consider whether Complaint 1 (conviction) is proven; [5] b. Second, once it finds the subject matter of the complaint to have been proved or admitted, [6] the Tribunal must consider the appropriate protective orders. The Tribunal may cancel the practitioner's registration on the basis that the circumstances of the offences (in Complaint 1) render the practitioner unfit in the public interest to practise nursing. [7] c. Third, the Tribunal must consider whether to make a costs order. [8] 5. The Commission seeks: a. an order under section 149C(1)(c) of the National Law cancelling the practitioner's registration; b. an order under section 149C(7) of the National Law that an application for review may not be made until after 2 years; c. an order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. 6. While the practitioner has admitted the complaint in writing, [9] the Tribunal must independently consider the evidence regarding the admitted conduct to determine appropriate protective orders and prepare its decision. [10] The obligation to provide a statement of a decision setting out findings, evidence and reasons continues to apply where the subject-matter of the complaint is admitted in writing. [11] Complaint 1 - convictions 7. [T]he Commission seeks a finding under section 144(a) of the National Law that the practitioner has been convicted of criminal offences in NSW. 8. The evidence includes: a. the certificate of conviction, court attendance notices, agreed facts on sentence, and sentencing transcript establishing that on 24 November 2021 the practitioner was convicted of two offences at Goulburn Local Court: i. (sequence 2) an offence contrary to S61KC(a) of the Crimes Act 1900 that on 21 January 2021, he sexually touched Person A (touching her vagina with his fingers) without consent. ii. (sequence 3) an offence contrary to S61KC(a) of the Crimes Act 1900 that on 21 January 2021, he sexually touched Person A (rubbing his penis on her vagina) without consent. b. the practitioner's Reply admitting the complaint. Cancellation 9. Once it finds the subject matter of the complaint to have been proved or admitted, [12] the Tribunal must consider the appropriate protective orders. The relevant principles include: a. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [13] b. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [14] c. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [15] d. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; [16] e. the Tribunal's jurisdiction is primarily protective, not punitive; [17] f. it is unavoidable that protective orders may be incidentally punitive; [18] g. asserted reformation of a practitioner's character is exceptional and requires clear proof. [19] 10. The Commission seeks an order that the Tribunal cancel the practitioner's registration via section 149C(1)(c) of the National Law in that the circumstances of the offences render the practitioner unfit in the public interest to practise. The relevant principles include: a. the National Law does not contain a definition of "unfit in the public interest to practice" and this term should be interpreted in light of the objects and guiding principle in the National Law; [20] b. whether a practitioner is unfit in the public interest to practice will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated; [21] c. whether a practitioner is unfit in the public interest to practice will require 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 on the practitioner in terms of any insight, contrition and remorse; [22] d. whether a .practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions [sic] may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight; [23] e. whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, 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 of professional standards and public confidence in the health professions. [24] 11. The Commission submits that the circumstances of the offences render the practitioner unfit in the public interest to practise nursing because, noting the factors mentioned in AHPRA's Registration Standard: Criminal History: a. The nature and gravity of the offence. It is a criminal offence for any person who without the consent of the victim and knowing that the victim does not consent intentionally sexually touches the victim. Parliament has made it clear that this is a grave offence by setting a maximum penalty of 5 years imprisonment per offence. [25] The practitioner's offending was not isolated. The respondent was convicted of two discreet counts. He sexually touched Person A touching her vagina with his fingers without consent then later, after she had passed out for some time, rubbed his penis on her vagina without consent. The practitioner's conduct was not trivial. The Magistrate described the serious nature of the touchings, a 'gross invasion in taking advantage of someone who is clearly in a vulnerable state', with her passing out, who is continually making it clear that she did not want any of this and yet practitioner persisted; b. The potential relevance of the offence to health practice. As a registered nurse, the practitioner's responsibilities include touching patients who may be unwell, asleep, sedated or unconscious. The Code of Conduct (which is admissible evidence of what constitutes appropriate professional conduct for the profession) [26] requires registered nurses to practice legally and act with professional integrity. The practitioner's conduct is inconsistent with the professional and ethical obligations expected of a registered nurse. c. The period of time since the offences were committed. The practitioner's offences were committed relatively recently in January 2021, noting that the Commission's investigation was appropriately placed on hold during the criminal proceedings. These are not historical offences. d. The conviction and sentence imposed. The practitioner was convicted of both offences and ultimately sentenced to 11 months imprisonment to be served by ICO. This is a lengthy sentence, reflecting the seriousness of the conduct. e. The age of the practitioner and the victims. At the time of the offending, the practitioner was 30 years old and the victim had just turned 19, a big age gap. The practitioner was a mature adult well aware of his obligation to comply with his professional obligations and the criminal law. f. The practitioner's behaviour after committing the offences. The practitioner denied the offences to his employer. The practitioner denied the offences to the Council. The practitioner initially pleaded not guilty to the charges. The practitioner told the S150 delegates that he will defend the charges. The practitioner's employer only became aware via the media that he had changed his plea to guilty. While the practitioner ultimately pleaded guilty, that is unsurprising given the strength of the prosecution case against him (including statements from Person A and others at the party). While the practitioner later resigned, he did so after receiving a show cause letter and he now acknowledges that his employment would have been terminated. While the practitioner now fully admits the complaint, that is unsurprising given the strength of the Commission's case against him (including the certificates of conviction). g. The practitioner's explanation. During his pre-sentence interview, the practitioner tried to explain why he returned to the party. The respondent claimed that his friend … told him about an intimate encounter with Person A earlier in the night. The respondent claimed that "it was in my mind that she was doing to me what she was doing with [the friend], but it did not happen". [The friend] states that as he was walking home with the practitioner after the party; he told the respondent that Person A had kissed him at the party and as somewhat susceptible and a little bit naughty when drunk" and then said that he did not take it any further because too young and drunk. It appears that, after hearing [his friend] say that Person A was a little bit naughty when drunk, the practitioner decided to return to the party to take advantage of Person A's vulnerability. During his pre­sentence interview, the practitioner also tried to explain why he engaged in non-consensual touching. The respondent claimed that 'even though she was saying no it was not registering with me'. As the sentencing Magistrate noted, Person A was clearly not consenting and she made it plain that she was saying no. 12. The Commission further submits that the circumstances of the offences render the practitioner unfit in the public interest to practise nursing because: a. the practitioner's conduct was persistent and harassed Person A (when Person A was dared to put icing on her chest, with the practitioner to lick it off, she declined. When she was dared to kiss someone on the lips and the practitioner said he wanted to do it, she said 'No' to him. When she covered herself with a blanket, he laid down next to her and began kissing her on the lips. When she turned away and said, "No", the practitioner continued kissing her, and began licking her neck and body. After she continued to push him away and said, "No", he touched her on the vagina with his fingers. After she pushed his hand away, he continued to rub her vagina, while continuing to kiss her on the mouth, neck and cheeks); b. the practitioner's conduct was predatory and exploited Person A (Person A consumed alcohol with the practitioner throughout the party, he continued drinking with her, he must have known that she was drunk, she was stumbling, losing her footing and fell to the floor, the party then ended, the practitioner left the party, the practitioner's friend told him that Person A had kissed him, then the practitioner asked Person A if she wanted him to return and assist her with cleaning up the apartment, after Person A fell asleep or passed out due to her level of intoxication, the practitioner had pulled down her shorts and underwear and touched her on the vagina with his fingers, Person A continued to try and push him away but struggled to do so given her level of intoxication, after Person A passed out again for a short period of time, the practitioner rubbed his penis on Person A's vagina); c. the practitioner's conduct posed a risk of psychological harm (the respondent had worked as a registered nurse in a mental health unit since 2018, the practitioner had no reasonable grounds for believing that Person A consented to the sexual activity, the practitioner must have known that non-consensual sexual touching posed a risk of psychological harm); d. the practitioner's conduct adversely impacted Person A: she was distressed immediately after the conduct (crying, scrubbing herself in the shower as she felt 'disgusting'), she was distressed soon after the conduct ('noooo Did you just fucked me? [crying emojis]"), she was teary eyed when she reported the incident to [another RN], she was crying and looked "devastated' when she reported the incident to her brother, she felt pressured to forgive the respondent and became suicidal ('I've lost hope on myself and it made me believe that I'm all alone here'), she attempted suicide about a month after the incident, she was admitted to the facility, she disclosed the incident to mental health staff at the facility and she described the impact of the practitioner's conduct to the Magistrate: 'for the past months of thinking what happened it's been a nightmare to me everynight [sic], ... after a month I attempted suicide because my mind was full of thoughts and I don't know what to do so I decided to take a lot of pills and end my [l]ife as I was betrayed, after that I don't feel enjoyment in everything anymore. I lost my friends ... I don't trust anyone anymore ... I got anxiety I'm scared at everything and everything brings back in the past [sic] I can't sleep anymore, ... I lost my job at [G]oulburn because I stop going to work as most of the people there are mens [sic]. I tried enrolling University ... but I can't think properly and focus properly ... All what I think now is my safety'. e. the practitioner's conduct adversely impacted LHD staff (the practitioner's colleague [the other RN] was required to attend the police station when she was asked to make a statement, the respondent's employer Director Mental Health Inpatient & Access Services Tim Leggett was required to make a notification to AHPRA when he became aware of Person A's disclosure, the practitioner's senior colleague … was required to make a further notification to AHPRA when she became aware of the practitioner's guilty plea via the media); f. the respondent must have known his ethical obligations. He had been a registered nurse in Australia since 2017 so must have known his obligations under the MBA Code of Conduct for Nurses. The Code clearly states that nurses should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession; g. the respondent must have known his professional obligations. He had been working at the facility since 2018 and had acknowledged that he had read, understood and agreed to comply with the NSW Health Code of Conduct in 2020. The Code clearly provides that staff must avoid conduct that could bring NSW Health or any of its staff into disrepute; h. although the conduct did not occur at the practitioner's workplace, Person A knew that the practitioner worked as a nurse at the hospital in Goulburn, he went to the party with another registered nurse who worked with him at the facility in Goulburn … and there were other registered nurses who worked in Goulburn at the party … and he must have known that his criminal conduct was likely to attract adverse media attention and may bring the profession into disrepute; i. the practitioner's conduct adversely impacted his nursing profession (the practitioner's conduct is incompatible with the personal qualities essential for the practice of nursing and brings the profession into disrepute); j. while the practitioner apparently did some self-directed reading over a 21 day period after the complaint was filed at the Tribunal, he has elected not to file any certificates of completion for any relevant seminars on consent requirements or professional obligations, so there is limited evidence regarding training or rehabilitation; k. while the practitioner apparently attended some sessions with an American online therapist before the Local Court sentencing, he has elected not to file any reports or correspondence from any treating counsellor, psychologist or psychiatrist, so there is limited evidence regarding sex offender treatment or reformation. 13. Accordingly, the Commission seeks a cancellation order with a 2 year non-review period to protect the public, reflect the seriousness of the conduct and maintain public confidence in the profession: a. the respondent will need a lengthy period to engage in appropriate treatment, complete relevant training and demonstrate genuine insight before he can be trusted to work as a nurse in future; b. there is no evidence about the practitioner's future employment plans; c. although the respondent is listed on the SCR, he could seek nursing employment in a private hospital; d. there is insufficient evidence to assure the Tribunal that the practitioner's character is reformed. Costs 14. The Tribunal has the power to order the practitioner to pay costs. [27] The Commission seeks an order that the practitioner pay the Commission's costs as agreed or assessed because: a. the NSW Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; [28] b. the presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party; [29] c. there was no disentitling conduct by the Commission to warrant a departure from the general rule." (some footnotes omitted)

RESPONDENT'S SUBMISSIONS

1. The Respondent has provided submissions in which he sets out the factual background and deals with the Respondent's view of the protective orders appropriate in the circumstances. These are set out below. "INTRODUCTION 1. The Tribunal has before it a complaint made by the Health Care Complaints Commission (the Complainant), against Mr Anthony Estilo (the Respondent), a registered nurse (RN) who currently has a suspension on his nursing registration. This complaint is set out in the Amended Complaint date stamped 25 November 2022 (the Complaint). 2. Complaint One is made under section 144(a) of the National Law in regard to conduct that occurred outside of the workplace on 21 January 2021 at Goulburn. The respondent was later convicted under section 61KC(a) of the Crimes Act 1900 after pleading guilty to 2 counts of the offence of ·sexual touching without consent". BACKGROUND 3. Mr Estilo was born in the Philippines where he qualified and worked as a RN prior to immigrating to Australia in January 2016. He worked as an Assistant in Nursing in 2016 at Moran Aged Care. In 2017 he completed a Bachelor of Nursing at the University of Technology Sydney. 4. Mr Estilo was first registered as a RN in Australia on 4 December 2017. He then worked as a RN at Estia Health Aged Care and Sydney South West Private Hospital before securing a job as a RN at the Chisholm Ross Centre at Goulburn Hospital in October 2018. He resigned this position on 29 September 2021 and has not worked in nursing since. 5. Mr Estilo made an on time self-notification to AHPRA on 3 March 2021 pursuant to his obligation to do so under section 130 of the National Law. 6. On 14 September 2021 a statement of "Agreed Facts on Sentence" was reached between Mr Estilo and the Department of Public Prosecutions Solicitor. 7. A guilty plea was entered on two charges under Section 61KC(a) of the Crimes Act 1900 on 24 November 2021 at Goulburn Local Court. 8. 8. Mr Estilo was initially held in remand from 24 November 2021 after being receiving an aggregate custodial sentence of 24 months with a non‑parole period of 15 months. 9. 9. A severity appeal was lodged and heard on at the District Court of NSW. Mr Estilo's sentence was than reduced to an aggregate sentence of 11 months to be served by way of an intensive corrections order to be served in the community commencing 1 February 2022 with 100 hours of community service (reduced from 200 hours). 10. Mr Estilo's 11 month intensive corrections order and community service are completed as at 31 December 2022. 11. Mr Estilo has avoided alcohol since the time of his offending. PROTECTIVE ORDERS 12. Mr Estilo has made honest and frank admissions in relation to the Complaint which is fully admitted. The Tribunal is empowered to make protective orders in accordance with the sections contained within Subdivision 6 of the National Law. 13. The Complainant has indicated that they are seeking cancellation of Mr Estilo's registration with a non-review period of 2 years pursuant to section 149C(1)(c) and a prohibition order per section 4 of the Health Care Complaints Act 1993 for the same time period as the non-review period, an order for costs, and an order that the details of witnesses in the schedule to the complaint not be disclosed. 14. There is no objection to the order that the details of witnesses in the schedule to the complaint not be disclosed. 15. While it is within the Tribunal's lawful discretion to make such an order as it sees fit, including for cancellation of Mr Estilo's registration with a non-review period of 2 years and an order prohibiting him from working in a health service for the same period, it is submitted that is not in the public interest to do so because Mr Estilo has reflected deeply on his offending and shown deep and genuine remorse. 16. It is also submitted that for this reason that Mr Estilo does not pose an ongoing threat to the community or In the workplace. 17. The outcome of these proceedings for Mr Estilo should be 'the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)'. Health Care Complaints Commission v Ly [2010) NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]. 18. The Tribunal's jurisdiction is not to punish the practitioner. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202, [1960] HCA 40 it is emphasised by the High Court that orders are not punitive in nature but for the protection of the public and to prevent loss of professional privilege due to abuse of that privilege. 19. Mr Estilo lives and works in regional New South Wales and has the support of his siblings and now has a partner and is in a stable relationship. 20. Mr Estilo accepts that his offending was serious, he has shown remorse from an early stage after the offending and has apologised to the victims and taken positive steps to improve his life, such as abstinence from alcohol. 21. Mr Estilo accepts that he has rightly been prevented from practicing as an RN to-date due to the serious nature of the offences. 22. He would like to return to nursing if given the opportunity and continue to live in Australia. Mr Estilo has many years of nursing training and experience both in the Philippines and Australia. 23. It is a relevant consideration for the Tribunal to take into account that Mr Estilo may be able to serve his local community in the future and the need for experienced RNs in regional areas. This is by way of the facilitation of access to services provided by practitioners in accordance with the public interest section 3(2) and National Law. 24. Mr Estilo's experience and qualifications in nursing, taken together with the ongoing Continuing Professional Development that he has undertaken while suspended from the practice of nursing warrant the Tribunal having regard for the public interest in Mr Estilo being able to utilise his skills and knowledge in the care of patients in future. 25. It is noteworthy that Mr Estilo has not been the subject of any other complaints either within the nursing profession or in his personal life. 26. It is submitted that there is no evidence before the Tribunal that Mr Estilo poses a future risk to the public or that he is unfit in the public interest to practice as a registered nurse, however he does accept that the offending was serious. 27. Mr Estilo accepts that due to the serious nature of the offending that the Tribunal might consider cancelling his nursing registration. In this event, it is submitted that a non-review period of 6 months would serve in the public interest to uphold the standards of the profession, both as a deterrent to other practitioners and also to give the public confidence in the standards of the profession and that a longer period would be unnecessarily oppressive. 28. It is further submitted that a Prohibition order as sought by the Commission is not needed or warranted. Mr Estilo has not been the subject of any complaints in the practice of nursing or while working as an assistant in nursing and such a prohibition order may be unduly oppressive in circumstances where Mr Estilo must maintain regional employment for his Regional Sponsored Visa until at least November 2023 (Subclass 489). COSTS 29. It is acknowledged that a costs order will likely follow in regard to Mr Estilo's admitted complaint. 30. It is therefore submitted that Mr Estilo will pay the costs of the Complainant pursuant to c13 schedule 5D of the National Law. 31. It is submitted that any costs order be on the basis of 'as agreed or assessed'."

APPLICANT'S SUBMISSIONS IN REPLY

1. No submissions in reply have been received from the Applicant.

DECISION AND REASONS

1. The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant and the Respondent, the Tribunal is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent has been found guilty of a criminal offence.
2. In the circumstances, it remains for the Tribunal to consider whether or not the Respondent is a person who is not fit to be registered as a nurse. In order to come to a conclusion, the Tribunal deems it necessary to consider the submissions of the Health Care Complaints Commission set out above.
3. The Tribunal proposes to consider each of the submissions made by the Applicant. The Tribunal accepts and agrees with the relevant principles set out in the submissions by the Applicant. In respect of the convictions referred to at pars 7 and 8 of the Applicant's submissions, the Tribunal refers to the Certificate of Conviction by the District Court of New South Wales where the judge made orders that the Respondent did sexually touch another person without consent and did touch the victim Person A on the vagina. There is no reference in the Certificate of Conviction that the Respondent's conduct in sexually touching Person A involved rubbing his penis on her vagina without consent.
4. The submissions call for cancellation of the Respondent's registration and, at pars 9 and 10 of the submissions, sets out the principles which should be taken into account by the Tribunal. The Tribunal fully understands the basis on which it should reach a decision. It is necessary to then consider the matters which the Commission believes that the Tribunal should consider and needs to discuss each of those in turn.
5. At par 11(a), the Applicant refers to consideration of the nature and gravity of the offence and points out that Parliament has made it clear that this is a grave offence by setting a maximum penalty of five years imprisonment per offence.
6. In relation to the gravity of the offence, the Tribunal does not in any way minimise the seriousness of the offences, but it needs to bear in mind that the maximum penalty is five years imprisonment per offence whereas the Respondent was convicted of two offences and was given a sentence of 100 hours of community work. In addition, the Applicant refers to the offending not being isolated as the Respondent was convicted of two discrete counts. The Tribunal has regard to the fact that both offences occurred in the hour between 2:00 am and 3:00 am on 25 February 2021 and in many respects therefore should be seen as somewhat contiguous.
7. In par 11(b), reference is made to the fact that the practitioner's responsibilities as a nurse include touching patients who may be unwell, asleep, sedated, or unconscious. It should be noted that the offences did not occur at work.
8. The Applicant did not provide the Tribunal with any evidence to indicate that the Respondent has ever acted improperly in his work as a registered nurse.
9. In par 11(c), the Applicant refers to the period of time since the offences were committed and states that they were committed relatively recently. The Tribunal is aware that the offences were committed approximately two years prior to the hearing and will deal with the Respondent's current position in due course.
10. In par 11(d), the Applicant refers to the conviction imposed and refers to it as a lengthy sentence. Historically, the Respondent was found guilty of the offences by the Local Court of New South Wales in November 2021 and sentenced to 24 months imprisonment with a non‑parole period of 15 months. The sentence was appealed against and reduced by the District Court to an imprisonment of 11 months to commence on 1 February 2022, with such term of imprisonment to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW).
11. In par 11(e), the Applicant refers to the age of the practitioner and the victim, the Respondent being 30 years old and the victim having turned 19. It is correct that the gap is significant and, as the Respondent was a mature adult, he was well aware of his obligations to comply with his professional obligations under criminal law.
12. In par 11(f), the Applicant refers to the practitioner's behaviour after committing the offences, in that he denied the offences to his employer, denied the offences to the Council and, initially, pleaded not guilty to the charges. It is correct that there were those denials but in evidence before the Tribunal it became clear that the Respondent was initially facing three charges, of which one charge was a far more serious charge. This charge was ultimately withdrawn, at which stage the Respondent admitted the offences and pleaded guilty to the offences as amended. The Respondent also explained to the Tribunal that his denial of the charges and his later admission and plea of guilty was appropriate having regard to the fact that he did not admit the third more serious offence of which he has never been convicted.
13. The Tribunal takes note of the comments made in par 11(g).
14. In par 12(a) of the submissions, the Applicant states that the practitioner's conduct was persistent and harassed Person A, and refers to the circumstances occurring prior to the offences. The Applicant fails to refer to the fact that after the commission of the offences with which he was charged, he asked the victim whether he should leave, and when told that he should, he left.
15. In par 12(b), the Applicant states that the practitioner's conduct was predatory and exploited Person A. It is certainly clear that Person A was in a very drunken state, as was the Respondent. The parties had been participating in games of a sexual nature and were drinking heavily to have put themselves in a state of severe intoxication. The Tribunal does not for one moment condone the behaviour of the Respondent on the basis of the Respondent and Person A being intoxicated to the extent that they were and in fact deplores that behaviour.
16. In respect of par 12(d), the Tribunal notes the impact that the Respondent's behaviour had on Person A. She was distressed immediately after the conduct, she was distressed soon after the conduct, she was teary‑eyed when she reported the incident to her colleague, and she felt pressured to forgive the Respondent and had become suicidal. She attempted suicide about a month after the incident and she was admitted to a facility where she disclosed the incident to mental health staff at the facility, and she described the impact of the practitioner's conduct to the Magistrate.
17. Clearly, the Respondent must have been aware of his conduct and its effect, and of the responsibilities and obligations which he had as set out in pars 12(e) to 12(i).
18. In respect of par 12(j), the Tribunal recognises that the self-directed reading which the Respondent did to keep up his knowledge in the field of nursing was not directed to the issues such as consent requirements or professional obligations. However, the Tribunal did note that an effort was made for him to keep up his skills.
19. In respect of par 12(k), the Applicant refers to the fact that having attended some sessions with an American online therapist before the Local Court sentencing, the Respondent elected not to file any reports or correspondence from any treating counsellor, psychologist, or psychiatrist and, therefore, there is no evidence regarding sex offender treatment or reformation. The Tribunal notes that the Respondent did, in fact, inform the Tribunal that he had done those sessions and there was no evidence proffered by the Applicant to counter his undergoing those sessions.
20. It will be necessary for us to consider the evidence provided by the Respondent and the submissions made by the Respondent in order to make a final determination as to appropriate protective orders. The Tribunal, therefore, refers to the submissions filed on behalf of the Respondent.
21. The Tribunal referred to the reflections provided to the Tribunal dated 22 November 2022 and the evidence given by the Respondent before the Tribunal.
22. In the reflections by the Respondent to the Tribunal dated 22 November 2022, the Respondent confirms that he realises that there was no consent for him to touch Person A in an intimate way and that in any case she appeared too intoxicated to provide consent. He stated that he has read Person A's victim impact statement and deeply regrets his offending and the impact that his offending has had on her. He advised that since the offending, he has stopped drinking alcohol and determined not to become intoxicated again in such a way as to impair his judgment. He takes full responsibility for his offending and is determined to abstain from alcohol and will avoid it. He also stated that he is aware of the need for a female to provide informed positive consent for intimate relations and is aware that laws about consent for sexual acts have been strengthened in New South Wales recently. He intends to fully abide by the laws in relation to consent in future in all circumstances. He stated that he resigned his position as a registered nurse after the offending effective 29 December 2021 but acknowledges that had he not resigned he would rightfully have been terminated from his position with Southern NSW Local Health District. He understands that the impact that his offending has had on his career is his own fault and he is sorry for the hurt he has caused Person A, her family and friends, and those also close to him such as his family. He stated that he is deeply ashamed of his actions.
23. The Respondent was cross‑examined by the Applicant. The cross‑examination addressed various aspects of the documents contained in Exhibit 1 and sought to address questions of credibility and the current attitude of the Respondent to the charges against him. The Tribunal is fully aware of its obligations to decide whether the Respondent is currently a fit and proper person to be registered as a registered nurse and to ensure that an appropriate message is sent to members of the profession to ensure that they are aware of the consequences of behaviour by them which could have similar effect to the current circumstances. In doing so, it is essential for the Tribunal to determine whether as at today's date the Respondent constitutes a threat to the community if allowed to practise as a registered nurse and whether the only way to send an appropriate message to members of the profession is deregistration of the Respondent for a period of time.
24. The Tribunal, having considered all of the above and having regard to the evidence which the Respondent gave before the Tribunal, is comfortably satisfied that the Respondent has demonstrated insight into his behaviour, remorse for what he has done, and the ability to continue to practise as a registered nurse going forward without being a risk to the community.
25. In determining that issue, the Tribunal believes that the Respondent was open and honest with the Tribunal during the hearing, was candid in answering questions and the approach which he adopted in giving evidence to the Tribunal regarding his change to his social behaviour, and that the Respondent is currently a fit and proper person to be working as a registered nurse. In regard to the message to the nursing profession, the Tribunal believes that a very severe reprimand of the Respondent is appropriate based on the fact that the Tribunal does not believe that the Respondent was predatory in his behaviour. The Tribunal, while not bound by the decision of the Court in sentencing the Respondent, did have regard to the fact that the District Court significantly reduced the sentence imposed by the Magistrate in the Local Court, determining that the initial sentence was too severe in the particular circumstances of this matter.
26. The Tribunal, therefore, believes that it is appropriate for a severe reprimand to be made against the Respondent for his behaviour in this matter. Prior to making an order, the Tribunal points out to the Respondent that he has clearly behaved in an atrocious manner towards a member of the public, albeit not one who was a patient of his, and that if he were ever to repeat such behaviour that would be held against him by any future determination in relation to his behaviour.
27. Accordingly, the Tribunal makes the following orders.

ORDERS 1. The Respondent is severely reprimanded for his conduct in respect of Case No. 2022/00249131. 2. The Respondent is to pay the costs of the Applicant as agreed or assessed, pursuant to cl 13 of Schedule 5D of the National Law.

Endnotes

1. National Law, s 3A.
2. Civil and Administrative Tribunal Act 2013 (NSW), s 38(2); National Law, Sch 5D cl 2.
3. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; HCCC v Meneghetti [2020] NSWCATOD 39 at [14].
4. Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [75].
5. National Law, s 144(a).
6. National Law, s 149.
7. National Law, s 149C(1)(c).
8. See National Law, Sch 5D cl 13.
9. National Law, s 165H.
10. See National Law, s 165M and, for example, Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 at [35] and, more recently, Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84 at [18].
11. See National Law, section 165M(5).
12. National Law, s 149.
13. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
14. National Law, s 3(2)(a).
15. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWCA 264.
16. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
17. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWCA 264.
18. Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].
19. Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448 at 461.
20. Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14].
21. Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67].
22. Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
23. Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]-[23].
24. Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22].
25. Crimes Act 1900 (NSW), s 61KC.
26. National Law, s 41.
27. National Law, Sch 5D cl 13(1).
28. Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46].
29. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40], applied by the Tribunal in several decisions including Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98]; Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9]. 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: 30 March 2023