Having found the respondent has behaved in a way that constitutes professional misconduct, VCAT orders:

1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ('National Law'), the respondent is reprimanded.
2. Under section 196(2)(e) of the National Law, the respondent's registration is cancelled.
3. Under section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for five years from the date of our orders.
4. Under section 196(4)(b)(i) of the National Law, the respondent is, whether as employee, contractor, manager or volunteer, and whether directly or indirectly, prohibited from providing any health service (as defined in the National Law), until such time as he is registered as a health practitioner under the National Law.
5. Reasons to follow.

1. On 9 November 2019, Khang Phu Nguyen[2] was on a flight from Sydney to Melbourne. A 16 year old female school Student, who was wearing a school uniform dress, was sitting next to Nguyen. After the plane landed in Melbourne and the seatbelt sign was turned off, the Student stood up and leaned forward over the seat in front of her to talk to a school friend. Nguyen remained seated, set up his mobile phone to shutter mode, placed the phone on the Student's seat with the camera facing up and took photos up the Student's dress.
2. Another passenger across the aisle noticed what Nguyen was doing. He asked the Student if she knew Nguyen. She said 'no'. The passenger questioned Nguyen about taking the photos. Nguyen denied doing so and then deleted the photos.
3. When the matter came to the attention of airline staff, the Australian Federal Police were alerted. On disembarkation, Nguyen was arrested and taken from the plane for interviewing. He made full and immediate admissions. Later that day, he told his wife about his conduct.
4. At the time of the conduct, Nguyen was a registered medical practitioner. He was undertaking a medical oncologist training program in Sydney, living away from his home in Brisbane. In late February 2020, Nguyen resigned from his then employment with the Western Sydney Local Health District, telling relevant managers about his conduct on the plane.
5. After the Australian Health Practitioner Regulation Agency (AHPRA) was notified about Nguyen's conduct, the Medical Board of Australia convened an Immediate Action Committee (IAC) to consider whether to suspend Nguyen's registration. It decided to do so on 15 April 2020.
6. Nguyen was later charged with two criminal offences. The second charge was withdrawn and so, when on 7 March 2022, he attended the Magistrates' Court of Victoria, Nguyen faced one count of Visually Capturing Another Person's Genital or Anal Region in contravention of section 41B Summary Offences Act 1966 (Vic) (SO Act and Charge 1).
7. On 7 March 2022, Nguyen pleaded guilty to Charge 1. He was found guilty with no conviction recorded and sentenced to an adjourned undertaking to be of good behaviour for 12 months and a condition was imposed requiring him to pay $3,000.00 to the Canteen Cancer Charity by 6 September 2022.[3]
8. Nguyen was referred to this Tribunal on 21 March 2023 so that disciplinary action could be taken under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).[4] The referral concerned two Allegations: the first relating to the criminal conduct and the second to Nguyen's failure to comply with National Law requirements to notify the Board of the criminal charges and finding of guilt.
9. By the time of the hearing, Nguyen had made full admissions to the Board's allegations. He agreed that his conduct constituted professional misconduct. The parties agreed that Nguyen ought to be reprimanded for his conduct, that his registration be cancelled, that he be disqualified from applying to be re-registered for a specified period and that he be prohibited from providing any health service for a period of time, noting he was a qualified and registered pharmacist before he completed his medical degrees. There was a dispute between the parties as to the period of disqualification and prohibition.
10. Having been satisfied the allegations were proven, we determined that the agreed determinations were to be made and we imposed five years as the period before which Nguyen could apply to be re-registered and we determined that the prohibition order was to remain in force until he was re-registered under the National Law. We came to those decisions having regard to the nature of the conduct, Nguyen's early and ongoing admissions, information concerning the psychological treatment he had received up until August 2022 and the paramount considerations of the protection of the public and public confidence in the safety of services provided by registered health practitioners.
11. We make four further comments for now.
12. First, had it not been for an alert fellow passenger, Nguyen's actions would likely not have come to light. As a community it is our collective responsibility to speak up when we see inappropriate conduct, from any person irrespective of their community standing, particularly when it is directed towards children or other vulnerable people.
13. Second, while we noted that according to her statement to police, the Student felt 'frozen and dazed' when she realised what Nguyen had done, we had no evidence before us about other impacts on the Student. We anticipate Nguyen's actions would have had both immediate and ongoing effects on her, perhaps doubting her future safety, not least of which might be an interference with her trust in the medical profession. We expect the other students on the plane and at her school might also re-consider their own personal safety in public given the offending occurred when they were on a school trip and were entitled to return home with good memories. It may well be the case that Nguyen's actions caused parents and the school to re-consider the degree of freedom given to students on excursions and school trips. Those are burdens children ought not to carry.
14. Third, Nguyen's conduct represented a significant breach of the law and the Student's entitlement to personal privacy and safety. She was a child at the time (made unmistakeably obvious by the fact she was wearing a school uniform) and was entitled to feel safe from criminal sexual offending by a male adult in a public space. It was especially disgraceful for a medical practitioner to act in this way. Nguyen's conduct was an affront to his colleagues and the high standing medical practitioners hold in our community.
15. Fourth, offending of the kind Nguyen engaged in is often referred to as 'upskirting': in our view that term is a minimising and entirely inadequate description of conduct which involves the creation of images which are pornographic in nature. It also involves the criminal exploitation and sexualisation of women and girls going about their everyday lives. That terminology is not repeated in these Reasons.

1. At the hearing, the parties confirmed that the content of a proposed statement of agreed facts, findings and determinations represented their joint position before the Tribunal (Agreed Statement).
2. The Agreed Statement summarised background matters, the terms of the two Allegations and their agreed positions.

1. Nguyen was first granted registration by the Board as a medical practitioner on 5 January 2015. At all relevant times, Nguyen held general registration as a medical practitioner and practised as such until his registration was suspended on 15 April 2020.
2. Nguyen was also formerly registered by the Pharmacy Board of Australia as a pharmacist between November 2008 and January 2015.
3. At all relevant times Nguyen was subject to the National Law and the Board's Good Medical Practice: Code of Conduct for Doctors in Australia, 2014.[5] The Agreed Statement referred expressly to the following parts of the Code of Conduct which applied to Nguyen:
   • Principle 1.4 - Practitioners must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion; and
   • Principle 8.3 - Practitioners have a statutory responsibility under the National Law to report matters to the National Boards: please refer to the Board's guidelines on mandatory reporting and sections 130 and 141 of the National Law. They also have professional obligations to report to the Board and their employer/s if they have had any limitations placed on their practice. Good practice involves:
     • being aware of these reporting obligations;
     • complying with any reporting obligations that apply to practice; and
     • seeking advice from the Board, professional indemnity insurer or other relevant bodies if practitioners are unsure about their obligations.
4. As set out above, a notification about Nguyen's conduct was made to AHPRA in March 2020. The notification was made by Nguyen's former employer based on his disclosures.
5. Although Nguyen's registration was not suspended until April 2020, he ceased work as a medical practitioner when he resigned his employment on 25 February 2020. As a consequence he has not practised since that date.

On 7 March 2022, [Nguyen] engaged in:

(a) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law;

in that he was convicted in the Magistrates' Court of Victoria, sitting at Broadmeadows, of a criminal offence.

Particulars

The particulars include, but are not limited to:

• 1.1 On 5 January 2015,[Nguyen] was registered with the [Board], as a medical practitioner . . .

1.2 At all material times [Nguyen] was:

(a) was a registered health practitioner within the meaning of the National Law;

(b) held registration with the Board under the National Law; and

(c) employed as a resident medical officer and in the Medical Oncology training program at Westmead Hospital, New South Wales.

• 1.3 At about 8:10 am on 9 November 2019, [Nguyen] was a passenger on a Qantas flight . . . from Sydney to Melbourne and was seated at 21A. Seated next to [Nguyen] at 21B was [the Student] in her school uniform of a button dress and a blazer . . .
• 1.4 About 8:12 am, the aircraft arrived at Gate 9 Terminal 1 and joined with the aerobridge. The seatbelt sign was turned off allowing passengers to move from their seats.
• 1.5 [Nguyen] remained seated while the [Student] next to him, stood up and leant over the seat in front to talk to a friend. [Nguyen] set up his iPhone 10 to shutter mode and placed the phone on the Victim's seat, screen down and camera lens up. [Nguyen] pressed the shutter button to commence taking images up the dress of the [Student].
• 1.6 A passenger at seat 21D across the aisle observed [Nguyen] manipulating his phone on the [Student's] seat. [Nguyen] denied taking the photos when confronted by the passenger.
• 1.7 [Nguyen] deleted the images he had taken and the passenger informed the cabin crew of the incident. Cabin crew detained [Nguyen] and notified the [AFP].
• 1.8 At about 8:38 am, the AFP officers arrived, boarded the aircraft and spoke with [Nguyen]. [Nguyen] was arrested, cautioned and had his iPhone 10 seized. [Nguyen] was transported to the Melbourne Airport Police Station where he participated in a record of interview.
• 1.9 On 9 November 2019, [Nguyen] was released from the Melbourne Airport Police Station pending a summons being issued.
• 1.10 On or about 10 February 2020, [Nguyen] was charged and summonsed to appear in the Broadmeadows Magistrates Court on 3 April 2020, on two criminal charges relating to his conduct on 9 November 2019:

(a) [Charge 1]; and

(b) one (1) count, Production of Child Abuse Material in contravention of s 51C of the [Crimes Act 1958 (Vic) (Crimes Act)] (Charge 2).

• 1.11 A person who is found guilty under s 41B of the [SO Act] is liable to a penalty of 2 years imprisonment.
• 1.12 A person who is found guilty under s 51C of the Crimes Act is liable to a penalty of level 5 imprisonment (10 years maximum).
• 1.13 On 7 March 2022, [Nguyen] pleaded guilty to Charge 1 (Charge 2 was withdrawn). [Nguyen] was found guilty with no conviction recorded and sentenced to an adjourned undertaking to be of good behaviour for 12 months and a condition requiring him to pay $3,000.00 to the Canteen Cancer Charity by 6 September 2022.
• 1.14 The Board refers to . . . principle 1.4 of the Code of Conduct.
• 1.15 [Nguyen's] conduct was inconsistent with [principle 1.4 of the Code of Conduct].

On or about 17 February 2020 and on or about 14 March 2022, [Nguyen] engaged in:

(a) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or

(c) unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,

in that he failed to notify the Board of a relevant event within 7 days after becoming aware that a relevant event had occurred, in breach of s 130 of the National Law.

1. The particulars referred to the requirements described above concerning a practitioner's obligation to give notice of events under section 130 of the National Law (see [20] and Code of Conduct Principle 8.3).

1. As stated earlier, from the time he was interviewed by the AFP, Nguyen made full admissions to the conduct the subject of Charge 1. Likewise, from an early stage, he admitted the factual matters contained in Allegation 1.
2. He also agreed that he had breached section 130 of the National Law because:
   • He was required to notify the Board within seven days of the fact he had been charged with Charges 1 and 2 and found guilty of Charge 1;[6] and
   • He had given notice of the laying of Charges 1 and 2 nine days late and given notice of the finding of guilt on Charge 1 (via his solicitors) 23 days late.

1. At the hearing, Nguyen was legally represented but he did not initially attend. We raised his absence with his solicitor on the basis that his non-attendance may suggest he was not willing to face up to the conduct that was before the Tribunal. We also raised the possibility that Nguyen might wish to give some evidence about his current circumstances and views about the conduct given the material in the parties' joint Tribunal Book (TB) as to those matters was somewhat dated. We informed Nguyen's solicitor that his attendance and any decision about giving evidence were matters for him to decide.
2. Nguyen's solicitor asked for time to speak to her client. Nguyen then joined the hearing via telephone (with no camera). We were told he did not intend to give any evidence but instead participate through his attendance.

1. In this proceeding, the Board had the burden of proving the factual elements of the Allegations to our reasonable or 'comfortable' satisfaction. When making findings of fact, we were required to have regard to the seriousness of the Allegations, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.[7]
2. Having regard to the material before us, including the AFP and Magistrates' Court records, the documents containing Nguyen's notices to the Board about the criminal matters and Nguyen's initial and continuing admissions, we were comfortably satisfied that the factual elements of Allegations 1 and 2 were proven.

1. Section 5 of the National Law provides that professional misconduct, of a registered health practitioner, includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. For the purposes of paragraphs (a) and (b), 'unprofessional conduct' is defined in section 5 of the National Law as 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers' and includes:

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to contravention;

1. The definition of professional misconduct is inclusive. A practitioner may engage in professional misconduct which does not fit neatly into one or other of those categories. Further, the definition does not preclude more than one sub-paragraph applying to particular misconduct.
2. Characterising proven conduct is an objective assessment which looks towards the conduct in light of the applicable standards and relevant definitions, rather than matters arising later in time, such as remorse, insight, and rehabilitation.
3. In relation to a finding under paragraphs (a) of the definition, the Tribunal must assess the degree of seriousness of the practitioner's conduct having regard to the extent to which the conduct departs from the proper standards of professional conduct of a registered medical practitioner. The gravity of professional misconduct is not measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
4. In relation to a finding under paragraph (c) of the definition, the term 'fit and proper person' allows for a wide range of matters to be considered. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails. The decision maker needs to make a value judgment and, in so doing, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation.[8]

1. Via the Agreed Statement, Nguyen agreed with the Board's position that the proven conduct in Allegation 1 constituted professional misconduct under paragraphs (a) and (c) of section 5 of the National Law.
2. The Board and Nguyen's position as to Allegation 2 was that it constituted professional misconduct under paragraph (a) or (b) of the definition in the National Law.

1. The Board made submissions as to matters relevant to making findings on characterisation. Nguyen did not take any issue with the submissions.
2. The Board's submissions may be summarised as follows.[9]

1. The nature and seriousness of the conduct: Nguyen's conduct underlying Allegation 1 was objectively serious as he engaged in criminal conduct of a sexual nature, in relation to a child and when he clearly knew the victim of his offending was a child.[10] Far from meeting the standard expected of him as a medical practitioner, Nguyen violated any implicit trust a child should have in an adult in this situation. His conduct signifies 'a gross breach of his professional obligations to conduct himself with integrity and affects his suitability to practice medicine'.
2. Repetition of conduct: Nguyen's conduct appears to have been isolated but the Tribunal may be concerned that no adequate explanation of this 'opportunistic sexual offending' and inappropriate conduct has been offered.
3. Reputational risk: Nguyen's conduct underlying Allegation 1 was clearly contrary to the Code of Conduct. His conduct was 'the antitheses of the profession's good standing and the inherent trust that the public has in medical practitioners as well as the fundamental goal of the profession to help their patients'.
4. Community expectations: the community is entitled to expect a high standard from medical practitioners both in their professional and personal lives. It is not controversial that Nguyen's conduct falls well below these expectations.
5. Standards of the profession: Nguyen's conduct underlying Allegation 1 was substantially below the expected standards of the medical profession or indeed any member of the community in the circumstances.
6. The Board submitted that Nguyen's conduct 'clearly' amounted to professional misconduct under paragraphs (a) and (c) of the definition in the National Law.

1. The Board submitted that the Tribunal should find, Nguyen's conduct, giving rise to Allegation 2, constituted professional misconduct within paragraphs (a) or (b) of the definition.
2. It submitted that compliance with the National Law is within the standards of the profession and it is important that practitioners comply with their reporting obligations. The proper administration of the National Law 'relies on practitioners self-reporting'.
3. The Charges and conviction relate to serious underlying conduct, and the delayed reporting 'indicates an unsuitability to practice and ongoing risk to the community'. In Nguyen's case, 'even the initial delay' of nine days was said to undermine 'the protective purposes of the National Law, particularly when the offending was of a sexual nature and against a child.
4. The Board noted that the conduct included two instances of failing to comply with the National Law's reporting obligations, upon being charged and upon being found guilty.
5. The Board contended the fact that Nguyen had notified the Board of the Charges (albeit late) showed he was aware of his obligation to notify. Despite that, he failed to notify the Board in the required time when he was found guilty of Charge 1.
6. At the hearing, the Board referred to the fact that, when he was arrested, Nguyen was told that charges would be laid. Despite that, he did not inform either the Board or his employer about his conduct. Reference was made to Nguyen continuing to work until 25 February 2020 when he resigned. While the Board confirmed there was no National Law obligation for Nguyen to notify it of his arrest, it suggested there was a connection between the time that has passed between the arrest and notice of the Charges being given. In circumstances where no obligation arose until the charges were laid, we gave no particular additional weight to the submission.
7. The Board noted that a breach of the National Law can itself be characterised as unprofessional conduct (see [33] above). The Board submitted that the two breaches of the National Law could be each characterised as unprofessional conduct and that more than one failure to comply was conduct substantially below the standard reasonably expected of a registered health practitioner (paragraph (a) of the definition of professional misconduct) or included more than one instance of unprofessional conduct that, when considered together, amounts to conduct substantially below the standard (under paragraph (b) of the definition of professional misconduct).

1. Nguyen agreed that the conduct in Allegation 1 constituted professional misconduct under paragraphs (a) and (c) of the definition.
2. As to Allegation 2, he submitted that the conduct fell within paragraph (b) of the definition. In response to questions from the Tribunal, Nguyen's solicitor confirmed her firm had represented Nguyen throughout the criminal proceeding and that it had written to the Board 30 days after he was required to provide notice of the finding of guilt under section 130 of the National Law.

1. Having regard to the circumstances which led to the guilty finding, the Board's submissions and Nguyen's agreement, we had no difficulty finding that the conduct in Allegation 1 fell within paragraphs (a) and (c) of the definition as it was both substantially below the standard expected of a registered medical practitioner and not that of a person who was fit and proper to be registered.
2. Nguyen's conduct as described in Allegation 1 was disgraceful and contemptible in all respects. As stated earlier, the conduct involved the opportunistic sexual exploitation and sexualisation of a child when she was travelling in school uniform in public. No medical practitioner who engages in that kind of conduct can be regarded as meeting the profession's standards and so that behaviour falls within paragraph (a) of the definition.
3. Paragraph (c) of the definition of professional misconduct is directed towards the conduct of health practitioners outside their practice. In this case, it calls for consideration of whether Nguyen's conduct was that of a person with sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a medical practitioner, taking into account the privileges attached to that status and the high standing of medical practitioners in the community.
4. It almost goes without saying that Nguyen's criminal offending fell well short of that of a person who may be entrusted to be registered as a medical practitioner. An essential feature of the doctor/patient relationship is trust given the doctor necessarily has access to often extremely personal, sensitive and confidential information about their patient and will sometimes need to conduct intimate examinations. The offending is inconsistent with the necessary trust a patient must have in their treating doctor.
5. The conduct in Allegation 2 is also concerning. As has been often stated, it is the responsibility of all health practitioners to make themselves aware of their legal obligations (whether legally represented or not), including giving notice of certain matters to the relevant Board. It is not only a procedural requirement but a means by which the Board can take any speedy necessary regulatory action against a practitioner where their conduct places the public at risk.
6. The fact Nguyen gave notice of the Charges indicates he was aware of his obligation under section 130 of the National Law. In circumstances where the required notice was given nine days late, the conduct fell within paragraph (a) of the definition of unprofessional conduct.
7. The delay in giving notice of the criminal finding of guilt was also unprofessional conduct under paragraph (a) of the definition of that term. The delay was greater, being 23 days late.
8. We were not persuaded that the second act of non-compliance ought to lead to a finding that the two instances represented a substantial departure from standards and so amounted to professional misconduct under paragraph (a) of the definition. We reached that view having regard to the fact that Nguyen was legally represented before the Magistrates' Court and those solicitors gave the required notice on his behalf. We also had regard to the fact that the Board was well aware of the criminal processes because, by then, it had suspended Nguyen and decided to place its National Law investigation on hold while the criminal processes were completed. In those circumstances the delay did not risk the Board being unable to undertake its regulatory responsibilities in respect of Nguyen.
9. In the particular circumstances of this case, taking the two breaches together, we found the conduct in Allegation 2 constituted professional misconduct under paragraph (b) of the definition.

1. Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven. They include imposing a reprimand, cancellation of registration, disqualification from applying for re-registration and prohibition from providing health services.
2. Section 3A(1) of the National Law says that, when determining any regulatory action to take, the paramount considerations are the protection of the public and public confidence in the safety of services provided by registered health practitioners and students.
3. Other guiding principles include that contained in section 3A(2)(d), which says:

restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. The Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences - the latter is known as general deterrence.[11]
2. It is understood that, to achieve the above aims, it may, at times, be necessary to impose a determination which has a punitive impact on the individual practitioner.
3. It is also accepted that personal matters such as shame, personal ordeal, and financial difficulty, while relevant to specific deterrence, are not relevant to the wider aims described above.
4. Where parties have reached a proposed agreement of the kind presented in this case, it remains the Tribunal's duty to determine the level of conduct alleged and the determinations to be imposed as no agreement between a regulator and the professional person under review can supplant that duty. However, it is appropriate for the Tribunal to give weight to and take into account the agreement between the parties as a highly relevant and important matter. That is particularly so if it is clear from the face of the agreement that it does not represent an arbitrary outcome but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

1. The transcript of the Magistrates' Court hearing on 7 March 2022,[12] shows that a significant issue was whether Nguyen was to be convicted in respect of Charge 1. Somewhat inaccurately, it was submitted that, very soon after being charged, Nguyen 'handed in' his registration by way of a 'voluntary suspension'. As is apparent from our Reasons, he was in fact suspended by the IAC. We have assumed the error as to what occurred was made by counsel rather than as a result of Nguyen's instructions.
2. Other submissions made on Nguyen's behalf referred to potential future professional impacts, including potential differences depending on whether there was a finding of guilt as opposed to a conviction.
3. There was some discussion of Nguyen's engagement with psychiatric and psychological treatment. The prosecutor noted that there was no report that Nguyen had engaged in counselling or similar in respect of the sexual offending behaviours, including against children. The Magistrate invited Nguyen's counsel to obtain instructions on the point because, while his Honour could see Nguyen had received psychiatric treatment, he did not know what Nguyen had been treated for or what progress had been made. When the hearing resumed, Nguyen's counsel sought an opportunity to obtain a report if it was a significant matter in respect of whether a conviction was imposed. No report was required given the Magistrate decided not to take that option.
4. The sentencing remarks included the following, starting with an acknowledgment that Nguyen had been receiving psychiatric treatment since 2020 and attended on at least 39 occasions. The Magistrate continued as follows:

so I've taken that into account in your favour and I've, I'm accepting that you have shown enough insight to appreciate that it's important to get some assistance and treatment in relation to your mental health and that you did that no doubt in response to your involvement in this extraordinarily concerning conduct.

I've taken into account the fact that you are 34, you have no prior matters and this offence goes back to November 2019, so there's been a lot of water that's gone under the bridge since this unfortunate event and there's no suggestion that you've got any outstanding matters or pending matters.

You seem to appreciate in the letter you've provided to me and in your instructions to [counsel] the seriousness of the conduct that you engaged in and the impact that it had on the victim, not only at the time but no doubt moving forward that your conduct was totally unjustified, it's frankly disturbing and no doubt the victim in this matter is still affected by the fact that an adult male would engage in such egregious conduct and expose her to the shame and the embarrassment of what you did.

So the conduct that you engaged in, it will continue to impact on the victim notwithstanding the fact I don't have a victim impact statement I'm taking the view that it would and will continue to have a negative impact on her. And you should understand that community does not accept this type of conduct and as the prosecutor rightly submitted there's a need for punishment and there's a need for deterrence both of you and also the wider community. So the conduct that you engaged in on any view was totally unacceptable.

However you have a number of matters that are relevant and that I take into account that mitigate the approach I take in relation to the sentence and I've already observed the fact you have no prior matters, nothing outstanding, you're 34, you're otherwise a hardworking man who clearly has a high level of intelligence and has very good prospects moving forward. I also take into account the fact that you have the support of your wife, that she has continued to support you and provide the assistance that's no doubt been necessary in the aftermath of this matter.

. . . I accept that given your qualifications and your previous involvement in the health industry that a conviction will potentially negate you moving forward in, in your career although I don't have any evidence that definitively indicates that but I accept that it, it may have an impact moving forward. Of course there will be a finding of guilt if I don't convict you and that will no doubt be taken into account by the relevant authorities in the event that you seek to work again in the medical field.

So on balance what I'm, what I've decided to do is to not convict you in relation to this matter and I've decided that whilst it's line ball you will be given the opportunity to not be convicted, notwithstanding the serious nature of this offence.

1. We pause to record that we see nothing the Student had to be ashamed or embarrassed about as she did nothing wrong except find herself seated next to Nguyen. Any shame or embarrassment are matters for Nguyen.

1. There was no dispute that Nguyen commenced treatment with consultant psychiatrist, Dr Faye Benjamin on 16 March 2020. There was no dispute that he continued to receive treatment from Benjamin until late July/early August 2022, attending a total of around 40 consultations.[13]
2. On 19 July 2022, Benjamin wrote a letter addressed to AHPRA.[14] She started by expressing concerns about providing a report at a time when she was still treating Nguyen, as it may have intruded upon the 'safe environment' which enabled Nguyen to 'explore his thoughts and feelings openly'. She was concerned that he not feel their therapy was being shared with a third party. As a result she provided general information and suggested that an independent psychiatrist provide a separate report on other matters.
3. The 'general information' she provided included the following:

I first consulted with [Nguyen] on the 16/3/2020 after being referred by his GP for assessment of low mood. It soon became apparent that [Nguyen] was involved in legal proceedings and that his medical registration was temporarily suspended. The incident related to this was disclosed to me by [Nguyen] over time as he appeared extremely shamed by the experience.

[Nguyen] has seen me on a fortnightly basis since presentation. It was my opinion that he suffered from anxiety and depressive symptoms as a consequence of the incident and the subsequent impact it had upon him. I initially conceptualised this as an adjustment disorder with mixed anxiety/depressive symptoms however symptoms persisted hence this became a mixed depressive/anxiety disorder. He responded to treatment with antidepressant medication, escitalopram, which was commenced in November 2020 and was ceased 12 months later.

[Nguyen] has remained compliant with treatment since presentation . . . To my knowledge, there has been no disclosed instances of other reckless or impulsive behaviour.

In relation to fitness to practice I would respectfully request an opinion is obtained from an independent psychiatrist to preserve the already established therapeutic relationship that has developed.

1. On 16 August 2022, Benjamin called the AHPRA investigator. Relevantly, she advised that:
   • Since she had provided the above report, Nguyen had ceased seeing her. He had told Benjamin he no longer wanted to see her;
   • She was 'concerned' that if Nguyen was to practice he should have ongoing treatment; and
   • The reasons why Nguyen committed the act (photographing a child up her dress) were 'still to be uncovered and this is a concern'.
2. At the hearing we were informed that Nguyen ceased treatment with Benjamin for the following three reasons:
   • He no longer felt he was benefitting from the treatment;
   • The consultation costs were significant; and
   • He had commenced work in a locality which made it difficult to get to Benjamin's rooms.
3. The available records indicated that Nguyen had also received psychological support in the period from around March 2020 to June 2020. No report was available and we had no detail as to the nature of the treatment Nguyen received.

1. The TB included two letters (dated 10 July 2021 and 27 February 2022) Nguyen wrote to the Magistrates' Court. Their content was very similar. The 27 February 2022 letter:[15]
   • Stated it was being written to express Nguyen's 'since remorse' for his 'irresponsible and offensive actions';
   • Stated that Nguyen 'deeply regretted taking inappropriate photos of the victim on the 9th of November 2019. I understand and regret this invasion of privacy that nobody should have to endure. I accept full responsibility for what I have done and acknowledge that there was no excuse for my actions';
   • Confirmed Nguyen had no prior criminal or like matters (apart from a minor traffic infringement); and
   • Confirmed he had the support of his wife, with whom he was expecting his first child.
2. Nguyen said the following about his circumstances at the time of the criminal offending and the aftermath:

Up until this incident I had been training to become a specialist cancer doctor. I had moved to Sydney away from my wife, my friends and my family so I could work towards this. It was a significant life change which had many unintended consequences which I believe had contributed somewhat to my state of mind and my actions. My work-life balance was poor, and I experienced significant workplace stress. I found the hours and commitment overwhelming, with long hours, weekends and sleepless nights from being on call. I also found the nature of the work difficult - more difficult than I could ever have imagined. This was compounded by the long distances from my support network which made me feel lonely and isolated.

I was embarrassed, ashamed and very scared when I was apprehended. I disclosed the incident to my wife . . . which was shameful and confronting. This incident as well as my associated poor mental health has had a significant strain on our relationship however [my wife] is loving and caring and is determined to support me through the difficult times. She is my pillar and the reason why I am determined to strive towards positive actions regardless of the outcome of this case. I have actively sought to remove or negate as any factors as possible that contributed to my poor state of mind at the time of the incident. In February 2020 I resigned from my position in Sydney to concentrate on my health and moved back home to Brisbane to be with my wife and family. I began psychological counselling in late November 2019. I have completed 6 sessions with my psychologist. I have been undertaking fortnightly psychotherapy sessions with [Benjamin] since March 2020. I had also taken medication (Lexapro) for my anxiety since between October 2020 and ceased in April 2021 due to side effects with the support of my psychiatrist.

I understand that these charges are serious. I have discussed the 'why' with my psychiatrist. During the course of our thirty-eight sessions that I have had with her, a focus has been on the loss of control in my life, particularly since working endless hours as a junior doctor as well as a strained traumatic childhood. By doing something as outrageous as what I did on the plane, it was suggested to me by my psychiatrist that my incredibly stupid and criminal behaviour may have had something to do with exerting some semblance control in my life. I don't know. But I continue to work with my psychiatrist to develop strategies to responsibly manage all aspects of my life.

1. As indicated by Benjamin's comments to the AHPRA investigator in August 2022, as at the end of their therapeutic relationship, she was not satisfied about why Nguyen had engaged in the conduct.
2. As to the consequences of his criminal conduct on the Student, Nguyen said:

I have also thought a lot about the impact of my actions on the victim. I don't know whether she has ever made aware of my behaviour. I am personally sorry for any psychological impact she may have suffered because of my dreadful conduct.

1. It was not clear to us why Nguyen was not aware of the Student's state of knowledge. We presume he would have had access to the brief of evidence which included a statement she made to the AFP.[16] It recounted how, when she realised what had been done, she felt 'frozen and dazed'.
2. Nguyen's letter went on to refer to his concerns about the potential loss of his medical career if a conviction was imposed and also about the impacts on his personal relationships. At that time, he and his wife had not told other family members (including his mother) or friends.
3. Nguyen explained more about his family background as follows:

I was raised by a single mother who was a refugee from Vietnam. She has sacrificed much to give me the opportunities provided to me. My brother and I support her financially and emotionally as she does not have any family nearby. My inability to continue practising medicine has caused her significant distress and has strained our current relationship.

This incident was a moment of poor judgement spurred by significant issues in my life at the time. I take full responsibility and deeply regret my actions. I have taken significant steps to get help and guarantee that I will not reoffend in the future. I have the love and support of my wife who will stand by me through difficult times in the future.

1. Nguyen's wife, Amy Lee, wrote a reference in support of her husband. It was dated 27 February 2022 and was addressed to the Presiding Magistrate.
2. In her letter, Lee confirmed she was aware of the terms of Charges 1 and 2 and that Nguyen told her about the 'incident' later on the day it occurred. She said she knew that would have been 'very difficult' for him to tell her due to his tendency to avoid conflict. She stated he knew the serious nature of the incident' and said it was 'obvious his guilt and fear of hurting me burdened him greatly'. She said:

He understood immediately the severe implications of what he had done and was deeply remorseful for his actions on the other individual.

1. Lee explained she had known Nguyen for the whole of his adult life and said his actions were 'very uncharacteristic of his personality and nature'. She described him as having a gentle nature, as always courteous and 'politically correct'. She referred to her observations about how he struggled living interstate doing work he found difficult and emotionally challenging.
2. Lee also referred to Nguyen's mother, describing how, as a single mother, she had worked to put her two sons through private schools and how she encouraged him to dedicate his time to studying in order to have a good career and for financial security. She also expressed concerns about how family (including her own parents) and friends would react when told about the offending.
3. Lee concluded her letter as follows:

I am confident that this will remain a one-off incident and he will live with the guilt and remorse of his actions from here onwards. He will continue to work through the guilt with health professionals and develop techniques to manage anxiety. I will continue to love and support him.

Nguyen's current circumstances and plans for the future

1. Nguyen and Lee's letters said that, after a period of time managing the repercussions of his conduct, Nguyen obtained work through Lee's company. He had trained himself in the use of 3D design software and website development. He later obtained a full-time position with a manufacturing company which he found intellectually stimulating and meaningful. At the hearing we were informed Nguyen continued to be employed by the same company as a manager.
2. While at the time he was before the Magistrates' Court Nguyen hoped to return to medical practice, at the Tribunal hearing we were informed that he had no intention of returning to medical practice although he did not want 'close the door' for the future. As to the possibility of providing health services (including by making use of his pharmacy qualifications) Nguyen's solicitor informed us he had no such plans.
3. Finally, we were informed that Nguyen had told family and friends about the criminal matters and that his wife was aware of the proceedings before the Tribunal.

1. As foreshadowed earlier, the parties jointly proposed that the Tribunal make orders that:
   • Nguyen be reprimanded (under section 196(2)(a) of the National Law);
   • Nguyen's registration be cancelled (under section 196(2)(e) of the National Law;
   • Nguyen be disqualified from applying for registration as a registered health practitioner for either five years or 12 months from the date of our orders (under section 196(4)(a) of the National Law); and
   • Nguyen be prohibited from providing any health service until either when he is re-registered under the National Law or for a period of 12 months (under section 196(4)(b)(i) of the National Law).
2. We agreed in principle that each of those determinations was appropriate subject to resolution of the dispute regarding the applicable time periods.
3. In those circumstances, when summarising the parties' submissions, we have focussed on the matters in dispute.

1. It is convenient to refer first to cases the parties relied on which they submitted were comparable and relevant to the disqualification and prohibition periods.
2. The parties submissions discussed when the proposed period of disqualification would commence: from the date of the Tribunal's orders or from the date of Nguyen's suspension. The latter arose because, while Nguyen's submissions indicated that he accepted a five year disqualification period was appropriate, he submitted it should be 'backdated' or take into account the nearly four years which had passed since he was suspended (on 15 April 2020).
3. Both parties referred us to cases which discussed the approach to periods of suspension when imposing disqualification periods.[17]
4. It has not been necessary to summarise the cases relied on by the parties on that issue, largely because it is not controversial that:
   • The National Law does not contain any provision which empowers the Tribunal to 'backdate' a determination;
   • The National Law does not contain any provision which expressly empowers the Tribunal to take account of periods of suspension (or otherwise out of practice including via an undertaking); but
   • It is usual for the Tribunal to have regard to all relevant matters, including periods out of practise, when exercising its discretion to impose determinations.
5. The following summaries concern cases the parties' placed particular reliance on.
6. Nursing and Midwifery Board of Australia v Farrow[18] (Farrow) concerned Farrow's conduct while he was working as a registered nurse in a hospital. Farrow was charged with criminal offences arising from his installation of surveillance devices at his place of work. The devices captured images of Farrow's female colleagues while using the toilet and changing their clothes. Farrow also captured images of a patient's genital area while she was affected by anaesthetic.
7. The Tribunal found that Farrow had engaged in professional misconduct when he:
   • Was convicted in the Magistrates' Court of five charges under the Surveillance Devices Act 1999 (Vic) and one charge under the Crimes Act 1958 (Vic);
   • Used an optical surveillance device to record a female patient in a state of undress;
   • Engaged in sexualised and/or inappropriate conduct with respect to his colleague by using inappropriate or sexualised language and engaged in inappropriate or sexualised physical contact with a nursing colleague; and
   • Transgressed professional boundaries by making inappropriate sexual comments to a patient, deliberately exposing a patient's breast, and engaging in sexualised and/or inappropriate conduct towards a patient.
8. There was a further allegation concerning Farrow's failure to comply with section 130 of the National Law.
9. In its 2022 decision, the Tribunal decided to reprimand Farrow, cancel his registration, disqualify him from applying for registration as a health practitioner for a period of 10 years from the date of the order and prohibit him from providing any health service, for a period of 10 years from the date of the order. As Farrow did not participate in the proceeding, the Tribunal could not consider any positive material or evidence of changes that have been made by Mr Farrow. When imposing the 10 year disqualification period, the Tribunal had regard to the fact that Farrow had already been out of practice for around two and a half years.
10. Nursing and Midwifery Board of Australia v Rankine[19] (Rankine) concerned a registered nurse working in aged care. While Rankine was caring for an 85 year-old lady with dementia, she used her mobile phone to make a video recording which showed the patient in distress and with indications of dementia. Rankine showed the video to her then partner and a friend. Evidence showed that Rankine was laughing when she shared the video and thought the video was funny.
11. Rankine was subsequently charged and pleaded guilty under s 26B of the Summary Offences Act 1953 (SA) for engaging in humiliating or degrading filming of others. That formed the basis for one of the allegations against Rankine. The Nursing and Midwifery Board of Australia (NMBA) alleged that Rankine engaged in other inappropriate conduct including filming another vulnerable patient and uploading the footage to a closed Facebook group. Rankine also failed to comply with section 130 of the National Law.
12. In 2019, the Tribunal made a finding of professional misconduct and unfitness to practice in relation to all allegations put forward by the NMBA. The Tribunal reprimanded Rankine, disqualified her from applying to be registered for eight years and prohibited her from providing health services for the same period. The eight year disqualification period was imposed in circumstances where Rankine had allowed her registration to lapse more than two years before the hearing.
13. Nursing and Midwifery Board of Australia v Pang[20](Pang). While in a public place, Pang attempted to take a photograph up the dress of a twelve-year-old child using his mobile phone. Victoria Police later executed a search warrant at Pang's home address and seized his computer which contained child exploitation material. After offering a guilty plea, Pang was convicted of one count of knowingly possessing child pornography.
14. In its referral to the Tribunal, the NMBA alleged that Pang's conviction of knowingly possessing child pornography constituted professional misconduct. The NMBA alleged that the conduct which led to the criminal charge constituted professional misconduct. Finally, the NMBA alleged that Pang had failed to comply with his obligations under section 130 of the National Law when the criminal charge was laid. Pang made full admissions to the allegations.
15. In its 2018 decision, the Tribunal found the first two allegations constituted professional misconduct and that the third constituted unprofessional conduct. It reprimanded Pang and disqualified him from applying for registration for four years, noting his registration had lapsed around two years earlier.
16. Nursing and Midwifery Board of Australia v Omant[21] (Omant). The 2015 case concerned Omant's possession of child pornography which included child nudity or erotic posing, sexual activity between children or solo masturbation by a child, penetrative and non-penetrative sexual activity between adults and children and sadism and bestiality. Charges were laid and, in due course, after pleading guilty, Omant was sentenced to a suspended sentence and good behaviour bond. About a month after the charges were laid, the NMBA imposed a condition that Omant not practice.
17. By the time of the Tribunal's orders, Omant had not practised for nearly five years. The Tribunal imposed a reprimand and detailed conditions on Omant's registration. They included that he undertake counselling in respect of his interest in child pornography (for at least 12 months) and random breath testing for two years. Omant was prohibited from working with any patient under the age of 18.
18. The Tribunal had access to a statement made by Omant as well as to forensic risk reports and evidence from Omant's treating general practitioner and psychologist. The NMBA made a submission, which the Tribunal accepted, that Omant's almost five years out of practice was sufficient for the protection of the public and so cancellation was not required.

1. The Board submitted that a significant disqualification period was appropriate given the objective seriousness of Nguyen's conduct, his lack of insight and remorse. Reliance was also placed on the need to ensure that general deterrence, specific deterrence and the protection of the community and maintenance of the reputation of the profession were achieved.
2. The Board submitted a prohibition order ought to be made for a similarly significant period in order to:
   • Make clear to other health practitioners that conduct of this nature will be met with significant consequences, undermines the reputation of the profession and the breaches the public's trust reposed in health practitioners by virtue of their registration; and
   • Ensure protection of the public and general deterrence - namely to send a strong clear message to practitioners that conduct of this nature will not be tolerated and ensure that Nguyen is not providing any health service to the public until he is able to demonstrate that he is a fit and proper person to hold registration.
3. The Board made the following further submissions in support of the disqualification and prohibition orders generally and for the imposition of a significant period.[22]
4. First, those orders were necessary to protect the public: Despite Nguyen having been suspended for some time, there was 'an obvious need to protect the public'. In addition, Nguyen had shown limited insight into his offending and there was no evidence that he has adequately engaged with a treating practitioner to address the issues that led to the offending. Reference was made to the fact Nguyen disengaged with Benjamin shortly after the resolution of his criminal proceedings. Accordingly, the Tribunal could not have confidence that Nguyen 'is a fit and proper person to hold registration as a medical practitioner or provide health services such that he would be in a position of trust and present no risk to the public, in particular children and other vulnerable people'.
5. A prohibition period until Nguyen is re-registered as a health practitioner would 'protect public health and safety' by preventing him from 'potentially circumventing the effect of a cancellation and disqualification orders, by providing a health service as an unregulated health practitioner'.
6. Second, those orders were necessary to maintain the professional standards of the profession: The Board submitted that making an order for disqualification and prohibition would assist in maintaining the standards of the profession in accordance with the principles set out in Craig v Medical Practitioners Board of South Australia.[23] Nguyen's conduct was said to represent 'a serious departure from the standards expected of any member of the community' and was 'completely at odds with what the professions need to uphold integrity in both their professional and personal life'.
7. Third, the orders would meet the need for general deterrence: the Board submitted that the proposed orders were required to send a strong message to the community and the profession 'that those who engage in this type of conduct will be the subject of meaningful disciplinary action and that the medical profession will not tolerate medical practitioners who commit offences of a sexual nature, or otherwise engage in sexual misconduct'.
8. Fourth, the orders would meet the need for specific deterrence: the Board noted that, although Nguyen had indicated that he did not intend to return to practice, 'given the lack of insight and remorse, the Board submits that specific deterrence has a role to play' if he later decided to return to practice. Specific deterrence was said to be relevant because: (i) the criminal sentence imposed on Nguyen may not have brought home to him the seriousness of his conduct, particularly as a member of the medical profession; (ii) the conduct was 'isolated but concerningly opportunistic and occurred in a matter of seconds'. Medical professionals 'are likely to be put in a position of trust in relation to children and vulnerable people on a daily basis'; and (iii) there was no evidence before the Tribunal about Nguyen's current level of insight, remorse or about any steps he had taken to reduce the risk of repeated conduct in the future.
9. Fifth, the orders were reflective of Nguyen's lack of insight: the Board submitted that, although Nguyen had regularly attended a psychiatrist for over two years, commencing in March 2020, he then chose to cease treatment. Reference was made to the two concerns held by Benjamin (see [81] above).
10. The Board submitted that we should be concerned that Nguyen may not have insight or understanding into his own conduct, and may not be safe to return to practice without ongoing psychiatric support. It was said to be 'critical' that the determinations protect the public from his return to practice (or his provision of health services) until he can show that he is fit and proper to do so.
11. As to the start date for any period of disqualification or prohibition, the Board submitted that the Tribunal has no power to backdate the start of such a period however, it accepted we could have regard to matters such as the fact of Nguyen's suspension and the time that had passed between then and the hearing.
12. Finally, the Board submitted that, separate from concerns about Nguyen's insight and risk to the public, it would undermine the protective purposes of the National Law if he was extended leniency by virtue of an allowance being made for the period he had been suspended.

1. Through written submissions dated 27 February 2024 and oral submissions at the hearing, Nguyen's solicitor directed our attention to the fact no conviction was imposed on Nguyen and emphasised that the sentence imposed was quite different from the factual circumstances in some of the cases relied on by the Board.[24]
2. We were also directed to the sentencing Magistrate's remarks. It was apparent from the remarks that the Magistrate had reviewed all of the materials before him (including about Nguyen's psychiatric treatment) and, while concern was expressed about the absence of a report showing Nguyen had received treatment for sexual offending against a child, in the end the Magistrate decided against imposing a conviction.
3. As to the psychiatric treatment, Nguyen's solicitor drew our attention to the around 40 sessions he had attended. Nguyen submitted that, in light of the significant financial expense and commitment in time to attend those sessions, we could conclude he had 'conclusively demonstrated his desire to understand his behaviour and gain valuable insight into his offending'. It was further submitted that, given 'the evidence of extensive treatment' Nguyen had undertaken, it could be open for us to conclude that 'this is not a case that warrants specific deterrence'.
4. Nguyen submitted that remorse and insight had been demonstrated saying we could be confident he was cognisant of the gravity and seriousness of the offending and 'most importantly, the significant breach of trust he committed as a member of the medical profession'.
5. It was submitted that Nguyen's demonstration of remorse and insight into his conduct could be highlighted by reference to the following:
   • 'At the earliest stage of proceedings' he had fully co-operated. 'Upon disembarking from the aircraft, he was immediately interviewed by [the AFP] and made full and frank admissions to the offending';
   • 'During his interview with [the AFP] he was remorseful for his behaviour' and that remorse was accepted by the sentencing Magistrate;
   • Nguyen voluntarily resigned from his employment on 25 February 2020 and he had not practised medicine since that date;
   • Nguyen 'immediately' commenced voluntary treatment with a Psychiatrist and maintained regular fortnightly treatment for over two years;
   • The references written by Nguyen in July 2021 and February 2022 'highlight his shame, embarrassment, remorse, and ongoing anguish he experienced because of his behaviour';
   • The plea of guilty to the offending was a further demonstration of his remorse. At no time was his matter listed for trial, and the complainant was never called upon to give evidence; and
   • The incident can be regarded as an isolated event.

1. We were satisfied that it was appropriate for Nguyen to be reprimanded and for his registration to be cancelled. We were also satisfied that it was appropriate for a disqualification period to be imposed and for a prohibition order to be made.
2. On the question of the period of the disqualification, we gave weight to the fact the offending was Nguyen's first offence. We gave weight to the fact Nguyen had been out of practice of his own volition from around February 2020 and then as a result of the IAC suspension from 15 April 2020. We accepted the list of matters above indicate that when he was charged (in February 2020, about three months after the offending), Nguyen acted in a manner which indicated he understood the inappropriateness of his conduct and that led him to resign his employment. We accepted that he had also acted appropriately by not seeking to dispute the Board's proposal to suspend him in April 2020. The letters Nguyen wrote to the Magistrate expressed remorse. His engagement in psychiatric treatment indicated he wished to understand his offending so as to ensure that he did not offend again. We accepted that Nguyen demonstrated insight and remorse by largely agreeing to the findings of fact and proposed determinations. That was appropriate given Allegation 1 concerned the fact of Nguyen's conviction and his failures to comply with section 130 of the National Law.
3. We had regard to the psychiatric treatment Nguyen engaged in for more than two years until he decided to cease in around August 2022. While we can anticipate the anxiety and other mental health difficulties he was experiencing were the subject of discussion and treatment, we had no evidence before us from Benjamin or other suitably qualified person about why the criminal offending occurred.
4. We agreed with the Board's submission that the fact the Magistrate showed some leniency was not particularly relevant to our task given the leniency was connected to Nguyen's then current psychiatric treatment which had ceased two years before the hearing before us.
5. Benjamin's letter to AHPRA said the offending was disclosed to her 'over time' rather than immediately due to Nguyen's feelings of shame. We accepted that Nguyen had discussed an explanation about the reasons for the offending with Benjamin but the last word on the topic from his treater was that the explanation had still not been 'uncovered' by the time her treatment ceased in August 2022.
6. As at the time of the hearing, we had no updated information about how Nguyen viewed his conduct and its causes. We had no further information available to us about how Nguyen had made use of the nearly two year period after he ceased psychiatric treatment to work towards being suitable to be able to apply again for registration.
7. The lack of recent information was of concern to us given the nature and circumstances of the offending but also due to:
   • Nguyen's reference to his offending as an 'incident' in his letters to the Magistrate. That minimising language did not reflect the true nature of his serious offending against a child in school uniform in public; and
   • The fact that, in the course of his interview with AFP officers, Nguyen referred to his use of his mobile phone to stream pornography by accessing 'PornHub'.[25] We had no information about the kind of material he accessed, how often he did so and whether the pornography involved children or adults.
8. Had Nguyen elected to give evidence before us or supplied an up to date psychiatric or psychological report, we may have been able to actively assess his level of insight and future risk by reference to material clarifying the nature and extent of what appeared to be a sexual interest in a female child in school uniform. We might have been able to understand how he came to engage in the opportunistic behaviour on the day in question and whether there is a risk he will repeat that behaviour or that it might escalate.
9. In the absence of such material, we could not reach a conclusion that the claimed insight and remorse were current and sufficient to give us confidence that Nguyen was close to being a fit and proper person to be registered as a medical practitioner again. We use the word 'close' because it was proposed that the disqualification and prohibition period be 12 months.
10. In those circumstances, we concluded that we could only give Nguyen limited credit for the time out of practice because we could not be satisfied he had used that time to address the fact he had engaged in offending of a sexual nature directed at a female child in a school uniform. As a result, there was an imperative to have regard to specific deterrence and to also make determinations that protected the public.
11. As to general deterrence, we considered the kind of offending in issue to be disgraceful but particularly so when engaged in by a medical practitioner.
12. That was because of the high regard with which those practitioners are held in the community and because members of the community and patients must feel safe placing trust in medical practitioners whether in a general practice, emergency or hospital setting.
13. We considered it to be critical that members of the profession know that, like other forms of sexual offending, taking sexualised photographs of girls and women when they are going about their lives in public is a gross breach of standards and will not be tolerated.
14. In deciding to adopt the Board's proposed five year disqualification period, we had regard to the cases relied on by the parties and, in particular, to those summarised above.
15. We agreed with the Board's submission (by reference to Rankine) that image based abuse of vulnerable people requires significant deterrence and denunciation by the Tribunal.
16. As to Nguyen's reliance on Omant, we noted that, at the time of the hearing, the Tribunal had access to the practitioner's own statement and evidence together with updated psychological reports which showed Omant had engaged in reflective treatment which identified how he had used and understood the pornographic material. The reasons for decision showed that Omant had an alcohol addiction for 15 years and that he used alcohol in connection with his accessing pornography. What the reasons also show is that the decision to impose conditions was made with careful regard to what was known about how Omant came to offend and the progress he had made over the five years he had been out of practice. As discussed above, we did not have comparable evidence before us about Nguyen and so could not undertake a similar analysis.
17. We had regard to the periods of time imposed in Farrow and Pang and the fact both cases involved a greater number of offences and, in the case of Farrow, other related conduct over a longer period of time. In the case of Pang, the period was agreed between the parties and the Tribunal took that matter into account when adopting the proposed disqualification of four years on top of the two years Pang had been out of practice. In Farrow, the Tribunal imposed a 10 year period aware that he had been out of practice for around two and a half years but also having not heard from Farrow due to his non-participation.
18. In this matter and given the above concerns about Nguyen's current insight and remorse, we concluded that a period of five years disqualification was necessary in the interests of specific deterrence but also to ensure that our decision was consistent with current community and professional standards which abhor sexualised offending against children.
19. For the same reasons, we concluded that Nguyen ought to be prohibited from providing health services until he is again registered under the National Law.

[1] On 20 March 2024, a correction order was made under s 119 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to correct a typographical error in [47]. The correct paragraphs of the definition of 'professional misconduct' referred to by the applicant were (a) and (c).

[2] In these Reasons definitions are shown through the bolding of names or terms. Italics are used to define cases.

[3] For reasons which were not clear, the certified extract included in the Tribunal Book (TB) recorded the findings and sentence as having been made on 6 March 2023.

[4] Although Nguyen lived in Sydney at the time of the relevant conduct and now lives in Brisbane, he was referred to this Victorian Tribunal because the conduct in issue occurred in this state (see section 193(2)(a)(i) of the National Law).

[5] The Code of Conduct is a code or guideline for the purposes of section 39 of the National Law and, under section 41, it is admissible in this proceeding as evidence of what constitutes appropriate professional conduct for a medical practitioner. The then applicable Code of Conduct can be found in the retired versions section of the Board's webpage: https://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx .

[6] Given Charge 1 was an offence which was punishable by 12 months imprisonment or more.

[7] Briginshaw v Briginshaw [1938] HCA 34.

[8] Psychology Board of Australia v Griersmith [2019] VCAT 52 [67].

[9] Board's written submissions [43]-[47], footnotes omitted.

[10] In the AFP interview, Nguyen estimated the Student was 15 or 16 year's old.

[11] See Medical Board of Australia v Janz [2011] VCAT 1026 [358]-[373]; and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 [60]-[61].

[12] TB 213-227. We record the final hearing of the charges was delayed as a result of the COVID-19 pandemic.

[13] With the last apparently occurring in late July/early August 2022.

[17] Board's cases: Dental Board of Australia v Nairn [2022] WASAT 86 (Nairn); Nursing and Midwifery Board of Australia v Farrow [2022] VCAT 43 (Farrow); Medical Board of Australia v Lee [2019] SACAT 72 (Lee); Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221 (Pang); and Nursing and Midwifery Board of Australia v Rankine [2019] SACAT 57 (Rankine). Nguyen's cases: Pang; Nursing and Midwifery Board of Australia v Omant [2015] VCAT 1529 (Omant); Nursing and Midwifery Board of Australia v Rankine v Middleton [2020] VCAT 744 (Middleton); and Honey v Medical Practitioners Board of Victoria [2007] VCAT 526. (Honey).

[18] [2022] VCAT 43.

[19] [2019] SACAT 57.

[20] [2018] VCAT 1221.

[21] [2015] VCAT 1529.

[22] [63 (a) to (e)], footnotes omitted.

[23] [2001] SASC 169.

[24] Referring to Nairn, Farrow and Pang.