1. The matter was heard before this Tribunal on 20 September 2022. The respondent did not participate. The Tribunal gave leave to proceed in his absence.[6]
2. In doing so, the Tribunal relied on the affidavit of Thomas James Ellison sworn 17 January 2022 and on communications between the Tribunal and the respondent as evidenced on the Tribunal file. The Tribunal was fully satisfied that the complaint and allegations were served on the respondent and received by him in December 2021. In addition, the respondent was given due notice of the telephone directions hearings which were held in this matter. He failed to answer his phone when the Tribunal telephoned him to facilitate his participation in such hearings. On each occasion he was subsequently provided with the orders issued by the Tribunal. He was advised as to the seriousness of the proceedings and the potential sanctions that might be imposed. He failed to respond to directions of the Tribunal which required action on his behalf.
3. The Tribunal was further satisfied that the respondent was given due notice of the full hearing and provided with a WebEx link to enable him to participate by video link. He did not participate at any stage of the proceedings. The Tribunal considered that it was appropriate to proceed in his absence.
4. The Board tendered a Book of Documents (C1) and a Supplementary Book of Documents (C2).
5. The Board indicated that it relied on the behaviour that gave rise to the two criminal convictions as the alleged basis for disciplinary action. It did not allege misconduct based on other interactions between the respondent and the victim referred to in the documentary evidence. We proceed accordingly.

1. The respondent met AB and her family through a common interest in 8-ball when AB was 13 and he was 24 or 25. After meeting her, he sent her a friend request on Facebook. She eventually accepted that request after he prompted her to do so when he saw her a week later.
2. He started to send her communications on Facebook. The victim's family obtained a pool table, and the respondent would visit to play pool with AB's stepfather.
3. In sentencing the respondent on 5 March 2021, Schammer J described and commented upon the two offences as follows:[7]

The offending in count 1 was committed in or about February 2015 when AB was 14 and you were either 24 or 25. You were playing pool at AB's home with her stepfather and she was sitting watching you both play. From time to time you would go and sit next to her. You touched her on four separate occasions. You put your left hand under her shirt and started rubbing her body, you tugged and twisted her sports bra, you put your left hand down her shorts and underwear and touched her bare bottom and you then touched her on the face. As outlined by Judge McIntyre, this was brazen sexual touching of a young girl near her stepfather in what should have been the safety of her own home. > > Count 2 relates to communications between you and AB by way of Facebook Messenger on 12 September 2016. I will not repeat the text of those messages, the majority of which is repeated on page 6 to 11 of the judgment of the Court of Criminal Appeal and as contained in the exhibits tendered during the trial. You initiated the communication. At that time AB was aged 16 and you were aged 27. By the communications you made it apparent to AB that you considered her sexually attractive, that you considered her mature for her age and you raised sexual topics such as cunnilingus. I agree with the observations of Judge McIntyre that you obtained some form of sexual gratification from those communications. > > AB prepared a detailed and very personal victim impact statement which was read to the court. It is quite clear from AB's statement that the offending has had a substantial impact on her and on her family, it having occurred at a formative time in her life. While struggling to cope with the fact of the offending, AB was also forced to relive the offending by giving evidence at trial. She has described this and the trial process as being an overwhelmingly stressful and embarrassing experience for her, during which she was painted as a liar. Notwithstanding your late guilty plea, you are yet to formally express any remorse or sympathy for your victim and her family. > > You are now 31 years of age and you have no relevant prior criminal history. The court is yet to hear any explanation for the offending and why it was that you behaved in this manner when you must have known that what you were doing was both criminally and morally wrong and in circumstances where you must have understood the ramifications of your conduct.[8]

4. As mentioned, the relevant text communications between the respondent and AB on 12 September 2016 are set out in the judgment of the Chief Justice.[9] It is obvious from those messages that the respondent was endeavouring to engage AB in highly sexualised conversations for his own gratification. He asked about her sexual experiences. He made it clear that he wanted to engage in physical sexual activity with her when she was of age. He referred to her as "hot" and "sexy" and wrote "u would be insane in bed". He pleaded with her to engage with him in the sexualised conversations.
5. AB was resisting his attempts to engage her in this way. She did not engage with his sexualised conversation and clearly wanted him to desist, but he continued. She responded with comments such as:

"This is sick and illegal man. We need to stop."[10] > > and > > "Please man stop."[11]

6. Despite the guilty plea to the communications offence, it appears that the respondent continues to maintain his innocence of the indecent assault and fails to fully acknowledge his responsibility for the communications offence. In a letter to him dated 5 August 2021,[12] AHPRA indicated that it was investigating various issues, the second of which was whether his conduct was consistent with him being a fit and proper person to be registered. The respondent provided a written response which was received on 20 August 2021.[13]
7. As to the indecent assault matter, he claimed to have been "set up" and stated that the allegations were not true. As to the communications charge, he suggested that:

His response is focussed on his own personal position and includes the statement:

"I have gone through hell and back and felt that I was victimized."

1. Suffice to say that the evidence makes it entirely clear that it was the respondent who had persistently pursued this child victim, 10 years his junior, and that she had no part in encouraging his behaviour. The communications giving rise to the second charge were initiated and pursued by the respondent. There is no factual basis for suggesting that he was responding to the victim when he sent the messages. To the contrary, she was trying not to engage with him. It reflects very poorly on the respondent that he seeks to blame the child victim rather than take responsibility for his crime.
2. Furthermore, there is no evidentiary basis for suggesting that the indecent assault allegations are untrue. We reject the respondent's claims as self-serving and totally untrue.
3. We adopt the verdict and findings made in the criminal proceedings. We have no doubt that the respondent committed the indecent assault as found by the jury and described by the sentencing judge. That was a serious criminal offence committed on a child 10 years his junior. It was an offence for which a maximum penalty of eight years' imprisonment is prescribed. We have no hesitation in categorising this behaviour as professional misconduct of a very serious kind. Although the conduct did not occur in the course of medical practice, it was conduct which is totally inconsistent with the respondent being a fit and proper person to be registered as a medical practitioner. It is the type of conduct which severely damages the reputation of the profession and destroys public confidence.
4. The respondent eventually pleaded guilty to the communications charge. The plea was entered on the agreed basis that he intended to make AB amenable to sexualised conversations. As the Chief Justice stated:

"Engaging a child in sexualised conversation in itself harms the child, but also creates a risk of making the child vulnerable to predatory attempts to have the child engage in the conduct itself."

5. The behaviour in question was very serious professional misconduct. It constituted an offence for which the maximum penalty was ten years' imprisonment. It was conduct that was totally inconsistent with fitness to practise. It was conduct of a type which damages the reputation of the profession and undermines public confidence.
6. The offending has had a profound effect on AB. We have regard to her Victim Impact Statement in the criminal proceedings.[14]

1. The respondent appears to have been a promising young medical practitioner at the time of his arrest. He had been short-listed to commence training as an anaesthetist, having been selected from amongst an extensive cohort of applicants. His arrest prevented him from taking up that opportunity. As the sentencing judge stated, he has lost much as a result of having committed these offences.
2. We have before us a large number of character references that were provided to the District Court from his family, friends, and associates.[15] They attest to a person of honesty, compassion, and strength of character. It is difficult to reconcile these references with the offences that the respondent has committed. That is particularly so when regard is had to the respondent's lack of insight, contrition, and engagement with the Tribunal process. We have regard to the references, but they can have only limited weight in this process.
3. As the respondent did not participate in the hearing, we do not have any further information about his present circumstances.

1. The respondent has not taken responsibility for his offending. He continues to deny the indecent assault and seeks to inappropriately diminish his responsibility for the communications offence. His response to AHPRA[16] demonstrates that he has little or no remorse or consideration for his victim. His focus is on himself. His insight into his behaviour is sadly lacking. He paints himself as a victim and bemoans the fate that has befallen him. There is no evidence that he has acknowledged or attempted to address his obvious character flaws. He continues to demonstrate character traits that are totally inconsistent with a fitness to be registered.

1. Both offences are class 2 offences under the Child Sex Offenders Registration Act 2006. The respondent is a registrable offender under that Act.[17] A registrable offender is prohibited from engaging in child-related work (unless an exemption is granted).[18] In the case of a person who has committed two class 2 offences, reporting obligations under the Act continue for a period of 15 years.[19] There are provisions by which reporting obligations may be suspended if the Supreme Court is satisfied the person does not pose a risk to the safety and well-being of any child or children.[20]
2. It is well-known that the digital age has provided avenues by which perpetrators of child sex offences have been able to flourish. The Child Sex Offenders Registration Act 2006 and the Child Safety (Prohibited Persons) Act 2016 reflect the high level of concern within our community regarding child sex offences and the legislative determination to do far more to protect children from such offences. It is generally accepted that we must do all that we can to deter potential offenders. Further, in the context of these disciplinary proceedings, there is an obvious need to ensure the public that standards within the medical profession will be upheld and child sex offending will not be tolerated. The sanctions that are imposed on practitioners found to have committed such offences can be expected to appropriately reflect these considerations.
3. The Board submitted that we should consider disqualifying the respondent for at least the period of his reporting obligations as was done in the case of Nursing and Midwifery Board of Australia v TFQ.[21] However, the Board did not suggest that this should necessarily be done as a matter of course. We consider that care should be taken with such an approach as reporting obligations can be suspended if the person is found to be no longer a risk to children. Nonetheless, the status of the respondent as a registrable child sex offender is a significant matter to which we should have regard.

1. In NSW Bar Association v Evatt,[22] the High Court confirmed that the purpose of disciplinary proceedings for a barrister was:

"entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved."

2. This statement was adopted and applied to the discipline of health practitioners in Craig v Medical Board of South Australia,[23] where Doyle CJ (Williams & Martin JJ agreeing) stated:

"The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession."

3. The protection of the public may sometimes require disciplinary action which has a greater adverse effect on the practitioner than may be warranted if punishment was the relevant consideration.[24] Unlike the process of sentencing for a criminal offence, personal circumstances of a practitioner may be of limited significance in the process of determining what is necessary in the public interest.[25]
4. In Health Care Complaints Commission v Litchfield,[26] the Court of Appeal made it clear that:

"The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which it departs from the proper standards. If this is not done, there is a risk that the conduct of delinquents in a profession will indirectly establish the standards applied by the Tribunal."

5. In Physiotherapy Board of Australia v Adey,[27] the SA Health Practitioners Tribunal observed that:

"... the imposition of disciplinary action may serve one or all of the following purposes:

• preventing practitioners who are unfit to practice from practising;
• securing maintenance of professional standards;
• assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct (or unprofessional conduct) will not be tolerated;
• bringing home to the practitioner the seriousness of their conduct;
• deterring the practitioner from any future departures from appropriate standards;
• deterring other members of the profession who might be minded to act in a similar way;
• imposing restrictions on the practitioners' right to practice so as to ensure that the public is protected."

1. In order to achieve these purposes, the Tribunal should impose disciplinary sanctions that adequately reflect the incompatibility of the misconduct with the fitness of the person to be registered. The disciplinary action should be such as to convey to other practitioners and the general public that such conduct is incompatible with registration and will not be tolerated. The sanction should be sufficient to assure the public that standards within the profession will be maintained and the public will be adequately protected.[28]
2. In Marin v Chiropractic Board of Australia,[29] the Full Court of the Supreme Court of SA rejected a submission that the period of disqualification in that case need not have been long as the Tribunal could rely on the National Board refusing re-registration if any risk to the public still remained. The Court made the point that the Tribunal generally has before it a wealth of information that may not be before a national board on a subsequent application for admission. The Tribunal is far better placed to understand the extent to which the conduct is incompatible with fitness to be registered.[30] The Chief Justice, with whom the other members of the Full Court agreed, stated:[31]

"However, there are specific considerations to which a Tribunal must have regard in fixing a period of disqualification, which are informed by the material received in the disciplinary proceedings which may not be revealed on an application for readmission to a health profession. An order of disqualification must 'bring home to the practitioner the seriousness of the practitioner's departure from professional standards'. A Tribunal which finds professional misconduct and must fix the period of disqualification is best placed to make the assessment of the period necessary to achieve that purpose. > > I accept that there is an overlap between the length of disqualification to be imposed for the purposes of enforcing professional standards and an evaluation of the suitability of the practitioner at a future time, but in assessing the suitability of an applicant it would duplicate the function of the Tribunal, and twice vex the disqualified practitioner, if a National Board were to ask itself whether an applicant, whose period of disqualification has ended, has been unregistered for a sufficient period of time to have learnt his or her lesson, and thereby to have become a suitable person for registration. > > The Tribunal is responsible for professional discipline; its orders should be effectively final and not interim measures. A National Board should not have the function of second guessing the sanctions it imposes. > > In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions. Even though that consideration has some analogy with general deterrence, its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed. > > After a period of disqualification fixed by the Tribunal has expired, the function of a National Board, when considering an application for registration, is not to revisit the wider considerations evaluated by the Tribunal, but to assess how the applicant has responded to the sanctions and the steps he or she has taken to address and correct the root causes of his or her misconduct."

1. The Board submitted that we should impose a reprimand and cancel the registration of the respondent. We should disqualify him from applying for registration for a period of 15 years and prohibit him from providing any health service for the same period.

1. It is obviously appropriate to express the Tribunal's condemnation of the conduct by way of a reprimand. It is also appropriate to cancel the respondent's registration. The conduct was totally inconsistent with the respondent being a fit and proper person to be registered. Given the respondent's lack of remorse and insight, and his failure to engage in the Tribunal process, there is no reason at all to suggest that there has been any change in his fitness and propriety. He remains unfit to be registered. His registration must be cancelled. A period of disqualification is also appropriate.
2. In Health Care Complaints Commission v Litchfield,[32] the Court of Appeal stated:

"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh J said in Ex Parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 at 468; 84 WN (NSW) (Pt 2) 275 at 286: > > '.....Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.'

3. While each case must be approached on its own merits, it will not be an easy task for a registrable child sex offender to convince the authorities that he or she should again be accredited to the public as a person who is a fit and proper person to be registered as a medical practitioner. It would require clear proof that the underlying character flaws have been acknowledged and successfully addressed, and that there is no longer an unacceptable risk. Even then, one would normally expect that the reformation of character would have to be demonstrated over a period of very many years before the person could again be trusted with the responsibilities of registration. Disqualification periods should not hold out false hope to a practitioner or put national boards under the pressure of premature and unmeritorious applications. Nor should they undermine public confidence by giving the impression that re-registration is likely to be granted too readily or too quickly. Child sex offending is fundamentally incompatible with fitness to practice and in normal circumstances the term of disqualification should clearly reflect that fact.
4. In some cases, it will be clear that the person should never return to practice and the period of disqualification should be set accordingly.[33] In other cases, it will be appropriate to allow for the possibility of re-registration after a suitable period of time, even if the required reformation of character appears to be unlikely. This is one such case. The respondent is a relatively young man. It is unlikely he will ever be able to re-enter medical practice, even if he was able to return to Australia. However, the authorities suggest that he should have the opportunity to at least apply, after a period of disqualification that adequately brings home to him the seriousness of his departures from professional standards and sufficiently assures the public that standards are being maintained.
5. In this case, there has been no expression of remorse. We have no reason to think that the respondent has taken full responsibility for his conduct or acknowledged the character defects that underlie it. We have no reason to think that any reformation of character has even begun. We have no basis to think that he will ever be able to be accredited to the public as a person who can be trusted with all the responsibilities of a medical practitioner.[34]
6. When considering the length of the disqualification period, we do not consider that we should speculate about whether the respondent will ever be permitted to return to Australia. That is entirely out of our control. We should set a period that will appropriately protect the public if he was to return. Having said that, it is the "wider considerations" referred to by the Chief Justice in Marin's Case that will primarily guide our approach.
7. We are guided by the comparative cases to which we have been referred[35], but we acknowledge that they can only be of limited assistance.[36] We have decided that the respondent should be disqualified from applying for registration for a period of eleven (11) years. He should be prohibited from providing any health service for a similar period.
8. This does not mean that the respondent can return to practice after that time. That is simply the time after which he may make an application. He would then have to satisfy the Board of his fitness and propriety.
9. We consider that these sanctions are appropriate and necessary for the following purposes:

(a) to demonstrate the total incompatibility of this conduct with the standards required of a registered medical practitioner; > > (b) to protect the public from the risks posed by the respondent; > > (c) to ensure the maintenance of appropriate standards in the profession; > > (d) to bring home to the respondent the seriousness of his departure from those standards and his failure to take full responsibility for his actions; > > (e) to assure the public that such misconduct will not be tolerated and that standards will be maintained; > > (f) to emphasise to other members of the profession that standards will be maintained and that conduct of this nature will be met with significant sanctions.

10. The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct and imposes the following disciplinary sanctions:

(b) The registration of the respondent is cancelled.

(c) The respondent is disqualified, for a period of eleven (11) years, from applying for registration as a registered health practitioner.

(d) The respondent is prohibited, for a period of eleven (11) years from providing any health service. ("Health service" has the meaning it bears in the National Law).

1. The respondent must pay the Board's costs and disbursements, to be agreed or fixed by the Tribunal.
2. The Tribunal has prohibited the publication of any material tending to identify the victim of the respondent's criminal offending as alleged in the referral document.

[1] The National Law is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act).

[6] South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) s 43(2)(f).

[7] We have amended Her Honour's remarks to refer to the victim as AB.

[14] See the victim impact statement at Book of Documents, p 138-141.

[17] Child Sex Offenders Registration Act 2006, s 6.

[18] Child Sex Offenders Registration Act 2006, s 65, s 66B. See also the provisions of the Child Safety (Prohibited Persons) Act 2016.

[19] Child Sex Offenders Registration Act 2006, s 34.

[20] Child Sex Offenders Registration Act 2006, s 38.

[21] (Review and Regulation) [2021] VCAT 1176 at [15], [69].

[22] (1968) 117 CLR 177; [1968] HCA 20 at [12].

[23] [2001] SASC 169; (2001) 79 SASR 545 at 553-554.

[24] Craig v Medical Board of South Australia [2001] SASC 169 [43]; [2001] SASC 169; (2001) 79 SASR 545, 554.

[25] Craig v Medical Board of South Australia [2001] SASC 169 [61]-[62]; [2001] SASC 169; (2001) 79 SASR 545, 556; Health Care Complaints Commission v Litchfield [1997] NSWSC 297, (1997) 41 NSWLR 630, 636; Medical Board of Australia v Singh [2017] WASAT 33.

[26] [1997] NSWSC 297; (1997) 41 NSWLR 630, 636.

[27] [2017] SAHPT 3 [36].

[28] Cf. Nursing and Midwifery Board of Australia v Freeman [2020] SACAT 88 [16], [18].

[29] [2020] SASCFC 74 [65], [66], [70].

[30] [2020] SASCFC 74 [70] - [74].

[31] [2020] SASCFC 74 [70] - [74].

[32] [1997] NSWSC 297; (1997) NSWLR 630, 635.

[33] Medical Board of Australia v Holder [2021] SACAT 47 [119] - [121].

[34] Cf. Sobey v Commercial and Private Agents Board (1979) SASR 70, 76.

[35] See, e.g., Medical Board of Australia v Yu [2021] SACAT 123; Nursing and Midwifery Board of Australia v TFQ [2021] VCAT 1176; Medical Board of Australia v Lee [2019] SACAT 72; Chinese Medical Board of Australia v Zhou [2020] SACAT 23; Medical Board of Australia v Balasubramanian [2021] SACAT 53.

[36] Marin v Chiropractic Board of Australia [2020] SASCFC 74, [79].