Nursing and Midwifery Board of Australia v Griffin [2025] TASCAT 200

1. The parties have provided to the Tribunal a statement of agreed facts and sanctions. The respondent has admitted he behaved in the conduct particularised in the allegations made by the Board, and further that the particularised conduct amounts to professional misconduct within the meaning of paragraphs (a) and (c) of the definition of "professional misconduct", contained in s 5 of the National Law.

1. In a situation such as this where the parties have reached an agreed position with regard to admitted facts, characterisations of conduct, and proposed sanctions, the Tribunal is guided by the principles set out Medical Board of Australia v Zhao [2021] VCAT 1053 at [9]- [10]:

The law relating to a negotiated settlement, of the kind reflected in the [agreed statement of facts], is well settled and summarised in the following principles:

(a) There is an important public policy document benefit in receiving, and if appropriate, accepting agreed penalty submissions;

(b) A court or tribunal must have regard to any such agreement reached between the parties and should not readily depart form an agreed finding and sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances; and

(c) It is highly desirable for a tribunal to accept the parties' proposal, provided it is persuaded the agreed outcome is accurate and appropriate and does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

However, an agreement between the parties does not automatically determine the outcome and can never supplant the Tribunal's duty to determine the appropriate level of conduct alleged and the determinations to be imposed. The Tribunal must reach appropriate findings and determinations after examining all the circumstances, including the ASOF, applying the statutory definitions and having regard to applicable standards of professional conduct.

1. It is the duty of the Tribunal to determine the facts, the level of conduct alleged, and the appropriate sanctions to be imposed in respect of that conduct. No agreement between a regulator and a professional person under review can supplant that duty - see Medical Board v McGrath [2014] VCAT 641 at [19]- [20] and Medical Board of Australia v Serguei Borisovich Kisselev [2023] TASCAT 28 at [37].
2. The civil standard of proof as set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applies. The Tribunal must reach a comfortable level of satisfaction in finding the matters proved on the balance of probability consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.

Background and registration status of the respondent

1. It is agreed between the parties that the respondent first obtained provisional registration as a registered nurse in January 2022.
2. It was further agreed that from that time the respondent was required to act in accordance with the Code of Conduct for Nurses Australia (the Code).
3. The Code sets out the standards of behaviour expected of nurses including that:

(1.2) Nurses practice honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. > > (1.2(c)) Nurses must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as professional misconduct and have implications for their registration.

(a) On 3 June 2022, the respondent committed the crime of rape against the victim (Ms A), also a registered nurse.

(b) The respondent was arrested and charged with one count of rape in contravention of section 185(1) of the Criminal Code Act 1924 (Tasmania) (the Criminal Code) on 10 August 2022.

(c) On 1 February 2024, the respondent was found guilty of one count of rape.

(d) A conviction was recorded and the respondent was sentenced on 5 February 2024 (backdated to 1 February 2024), to a term of imprisonment of 4 years, with a non-parole period of 2 years.

(e) In accordance with the Community Protection (Offender Reporting) Act 2005, the respondent's name was placed on the Community Protection Offender Register and he was ordered to comply with the reporting obligations under that Act for a period of 5 years from his release from prison. The respondent was further ordered to pay a compensation levy of $50.00 to the Victims of Crime Compensation levy within 28 days of release from prison.

(a) At all material times, the respondent held registration as a registered nurse, prior to his resignation from the hospital on 20 December 2023.

(b) Section 130(1) of the National Law provides:

A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.

(c) A 'relevant event' is defined by s 130(3) of the National Law to include:

(i) Being charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(i)).

(ii) Being convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment (s 130(3)(a)(ii) of the National Law).

(d) The respondent breached s 130 of the National Law on 3 occasions.

(i) On 10 August 2022, the respondent was charged with one count of rape, an indictable offence, in contravention of s 185(1) of the Criminal Code. The maximum penalty for rape in Tasmania is 21 years.

The respondent failed to notify the Board of a relevant event (either within 7 days, or at all).

AHPRA became aware of the criminal charge when they received a notification on 24 January 2024.

(ii) The respondent falsely, wilfully or recklessly declared that he did not have a criminal history when he applied for the renewal of the registration as a registered nurse with the Board on 27 May 2023.

In his 2023 renewal application the respondent answered 'no' to the following questions:

During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?

Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?

The respondent's offending took place on 3 June 2022. The respondent was charged on 10 August 2022.

(iii) On 5 February 2024, the respondent was convicted of 1 count of rape in the Supreme Court of Tasmania having been found guilty beyond reasonable doubt, by a jury in the Supreme Court of Tasmania.

The respondent failed to notify the Board of a relevant event (either within 7 days, or at all).

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; and

...

(b) 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. As stated by the Tribunal in Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321 at [75]- [78], when dealing with s 5 of the National Law:

75. The definition 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. > > 76. 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. > > 77. 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. > > 78. 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. As stated by the Tribunal in Psychology Board of Australia v Griersmith [2019] VCAT 32 [67]: > > 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. The same approach is to be applied to weighing matters in favour of the person.

1. I am comfortably satisfied on all of the evidence before the Tribunal, noting the agreement as between the parties that the conduct outlined in Ground 1 constitutes professional misconduct under paragraphs (a) and (c) of the definition for professional misconduct contained in s 5 of the National Law. I am also satisfied that the respondent's conduct outlined in Ground 2 constitutes professional misconduct under paragraph (b) of the definition of professional misconduct contained in s 5 of the National Law.

1. Based on my consideration of all the material before the Tribunal, I am comfortably satisfied of the following facts in relation to both Grounds 1 and 2 of the Board's allegations against the respondent.

1. On 3 June 2022, the respondent committed the crime of rape against the victim (Ms A) who also a registered nurse.
2. The respondent was arrested and charged with one count of rape in contravention of s 185(1) of the Criminal Code on 10 August 2022.
3. Following a trial, on 1 February 2024 the respondent was found guilty of one count of rape.
4. On 5 February 2024 (backdated to 1 February 2024), the respondent was convicted of rape and was sentenced to a term of imprisonment of four years with a non-parole period of two years.
5. In accordance with the Community Protection (Offender Reporting) Act 2005, the respondent's name was placed on the Community Protection Offender Register and he was ordered to comply with the reporting obligations under that Act for a period of five years from his release from prison. He was further ordered to pay compensation levy of $50.00 to the Victims of Crime Compensation Levy within 28 days of his release from prison.
6. These facts are supported by the memorandum of sentence as well as the sentencing remarks of the Honourable Acting Justice Martin both dated 5 February 2024.
7. In his comments on passing sentence His Honour relevantly stated:

Mr Griffin, all crimes of rape are serious crimes. They are serious crimes of violence. It needs to be clearly understood, particularly clearly understood by men throughout our community, that all crimes of rape are serious crimes of violence. You said to the police, more than once, I am not a rapist. I do not know whether you believed that statement at that time. But it would not be unusual for men to believe that type of statement when the crime has not been accompanied by physical violence restraining or overcoming resistance. That type of attitude or belief among men must cease. It cannot cease soon enough. Even if a victim submits and does not physically resist nevertheless the crime of rape is a crime of violence. The violence is inherent through the bodily violation without consent. > > As I said, every crime of rape is a serious crime of violence, but as with every crime there is a scale of seriousness. It is not a mitigating factor as such, but it is a relevant factor in assessing where your crime sits on the scale of seriousness that your crime was not attended by physical violence causing injury or physical violence gratuitously applied to overcome physical resistance. But as I have said, it was nevertheless a crime of violence. > > In assessing the gravity of your crime, it must be borne in mind that Ms A trusted you as a platonic friend and you took advantage of that trust and you abused your position of trust. In addition I am satisfied that you were not in need of a debrief that night. You had in mind pursuing sexual intercourse and you kept that in mind notwithstanding that you became aware that another male person had been in the company of Ms A earlier that night. You gained entry using the false pretence of needing a debrief, knowing that Ms A trusted you and would be sympathetic to your request. Once in the bedroom, when Ms A made it clear that she did not want to engage in any form of intimacy with you, you quickly decided to push ahead, notwithstanding that you knew Ms A was not consenting. You callously disregarded Ms A's wishes and forced yourself upon her. You violated her and you violated the sanctity and security of her home and bedroom. There are no mitigating circumstances accompanying the objective facts of the crime. > > For these reasons in my view, your crime is not at the lower end of the scale of seriousness for crimes of rape. Vindication of the victim, denunciation, punishment and general deterrence are important factors. (my emphasis) > > You are convicted. I impose a sentence of imprisonment for four years, commencing on 1 February 2024. I direct that you be eligible for parole after you have served two years of that sentence and I make a reporting order under the Community Protection Offender Reporting Act that you report for a period of five years in accordance with the Act, that is the period of five years commencing on your release.

1. At relevant times, the respondent held registration as a registered nurse prior to his resignation from employment at the Royal Hobart Hospital on 20 December 2023.
2. The respondent breached s 130 of the National Law on three occasions:

(i) On 10 August 2022, the respondent was charged with one count of rape, an indictable offence, in contravention of s 185(1) of the Criminal Code. The maximum penalty for rape in Tasmania is 21 years.

The respondent failed to notify the Board of a relevant event (either within 7 days, or at all).

AHPRA became aware of the criminal charge when they received a notification on 24 January 2024.

(ii) The respondent falsely, wilfully or recklessly declared that he did not have a criminal history when he applied for the renewal of the registration as a registered nurse with the respondent on 27 May 2023.

In his 2023 renewal application the respondent answered 'no' to the following questions:

During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?

Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?

The respondent's offending took place on 3 June 2022. The respondent was charged on 10 August 2022.

(iii) On 5 February 2024, the respondent was convicted of 1 count of rape in the Supreme Court of Tasmania having been found guilty beyond reasonable doubt, by a jury in the Supreme Court of Tasmania.

The respondent failed to notify the Board of a relevant event (either within 7 days, or at all).

1. The Tribunal has power to make determinations under s 196(2) of the National Law. Section 3A(1) of the National Law provides that, in determining any regulatory action to take, the paramount considerations the Tribunal must take into account are "protection of the public", and "public confidence in the safety of the services provided by registered health practitioners and students".
2. Other guiding principles are contained within s 3A(2)(b) which states that restrictions on the practice of a health professional 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".
3. It is clear that a Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. In appropriate cases, the Tribunal is required to make determinations which will deter the individual health practitioner from engaging in the same or like conduct (specific deterrence), and which also serve as a warning to other health practitioners (general deterrence).

1. As was stated by Senior Member Jack in [Redacted] [2025] TASCAT 101B [31]:

The principles to be applied by the Tribunal in making determinations as to sanctions were summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311 at [20]: > > (a) the purpose of the imposition of determinations is to protect of the public; > > (b) determinations are intended maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public; > > (c) determinations should in no way be punitive; > > (d) the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct, by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner; > > (e) personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner; > > (f) the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination; > > (g) the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner; > > (h) insight can include as an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and > > (i) any form of official censure is of consequence. It has been held that a reprimand should not be considered a 'slap over the wrist'.

1. I accept the Board's submissions that the respondent's conducts as found for Grounds 1 and 2 of the Board's allegation constitute professional misconduct.
2. With regard to Ground 1 this is so because:

(i) The conduct is plainly very serious; and

(ii) The conduct constitutes a substantial departure from the applicable code of conduct and recognised professional standards as alleged by the Board.

1. On a reading of Acting Justice Marshall's comment on passing sentence, the respondent's conduct basing Ground 1 was found to be very serious, premeditated and deliberate with his crime not being "at the lower end of the scale of seriousness for crimes of rape".
2. Although the respondent has shown some insight with respect to his conduct, as evidenced by him signing a Statement of Agreed Fact and admitting the conduct and a position on sanction, I find, as the Board has asserted that this action reflects his finding of guilt, conviction and sentence, and should only be given limited weight when considering an appropriate sanction in these proceedings.
3. Despite the Board's admissions that this is a matter where there is a need for specific deterrence, I consider the words of Senior Member Jack in [Redacted] to be equally applicable in this matter where she stated at [32]:

The above principles are relevant in the present case where the respondent has been punished for his conduct already by the Supreme Court of Tasmania. The emphasis before the Tribunal is now the protection of the public and the maintenance of professional standards and reputation of the nursing profession. Although there will almost inevitably be a need for an element of specific deterrence in matters where professional misconduct has been found, in the present case I think the issue of specific deterrence plays a more limited role than general deterrence.

4. The Board's submissions support a finding that there is a need for general deterrence in the sanction imposed on the respondent.
5. Given the respondent's position of trust and the responsibility as a nurse and his responsibility to ensure the delivery of safe and quality care, there is a need for this sanction to serve as a reminder to registered health practitioners that conduct of this type is clearly unacceptable and to deter other practitioners from engaging in similar conduct.
6. To support this submission, the Board refers to Nursing & Midwifery Board of Australia v Little (Review and Regulation) [2020] VCAT 687 at [39]- [40]:

General deterrence requires consideration of whether there is a need to signal to other members of the professional that adverse consequence will follow such conduct and thereby deter them from the same conduct, in the interest of maintaining professional standards and public confidence in the profession. In assessing the need for general deterrence, the Tribunal takes into account the nature and gravity of the conduct and the potential consequences of others engaging in similar conduct.

7. This confirms that general deterrence is an important consideration in a proceeding such as this.
8. The respondent's conduct as found relating to Ground 2 of the Board's allegations clearly indicate his omission to comply with the requirements of the National Law in notifying the applicant of relevant matters and his falsification of answers to use the applicant's words, "strikes at the heart of moral integrity and character requirements for a nurse with respect to their registration. The conduct calls into question the respondent's character".

1. In the Agreed Statement of Facts and Sanctions at [27] - Joint Position on Sanction, the parties have invited the Tribunal to make the following orders pursuant to s 195, 196(2) and 196(4) of the National Law and these were:

(i) The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.

(ii) The respondent's registration as a registered nurse is cancelled pursuant to s 196(2)(e) of the National Law.

(iii) The respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 years from the date of these orders pursuant to s 196(4)(a) of the National Law.

(iv) The respondent is prohibited from providing any health service until the respondent is re-registered pursuant to s 196(4)(b)(i) of the National Law.

(v) The respondent pay the Board's costs to be taxed in default of agreement pursuant to s 195 of the National Law.

1. On the evidence I agree that a reprimand is appropriate. A reprimand is a formal denunciation of a practitioner's conduct. A reprimand is a form of official censure. It is a formal statement of denunciation of a practitioner's conduct which appears on their registration record - see for example Medical Board of Australia v Adams [2025] TASCAT 125, and Nursing and Midwifery Board of Australia v Brealey [2012] QCAT 323, and Honey v Medical Practitioner Board of Victoria [2007] VCAT 526.
2. With regard to cancellation of registration, disqualification and prohibition, the applicant has appropriately stated that whilst each case is decided on its own facts and reference to past sanctions is an imperfect guide, considerations of sanctions imposed in similar cases or cases involving analogous conduct can assist in determining an appropriate sanction - see Osteopathy Board of Australia v Ratliff [2021] VCAT 658 at [67], Chinese Medical Board of Australia v Zhou [2020] SACAT 23 at [98], and Nursing and Midwifery Board of Australia v Panell [2019] SACAT 42 at [49]. The Board has also provided an extensive list of what they assert to be similar cases.
3. The case of Nursing and Midwifery Board of Australia v Farrow (Review and Regulation) [2022] VCAT 43 is cited by the applicant as being of particular relevance, this being a case where a practitioner was convicted and found responsible for engaging in sexual behaviour directed towards a nursing colleague and the sexual assault of a patient. Additionally, the practitioner failed to report criminal charges and convictions to the regulator. In this case the practitioner received a reprimand, registration cancellation and orders were made disqualifying him from reapplying for registration and prohibiting him from providing a health service for a period of 10 years.
4. I agree with the Board's submissions, given the seriousness of the respondent's conduct, that the Tribunal should send a strong and clear message to practitioners and the public that such serious conduct will not be tolerated.
5. Given the clear seriousness of the respondent's conduct, I agree that a disqualification of the respondent from reapplying for registration for a period of 12 years from the date of this order is appropriate.
6. The Board has also sought that the respondent be prohibited from providing, whether as an employee, contractor, manager or volunteer and whether directly or indirectly, any health service until he is granted registration as a health practitioner under the Nation Law.
7. The Tribunal has the power to make such an order, and I consider it appropriate to do so in the circumstances, noting that this will avoid the possibility of a "back door" means of the respondent engaging in such work before his period of disqualification expires.
8. Having also considered the State Administrative Tribunal of Western Australia's decision in Medical Board of Australia and Singh [2017] WASAT 33 at [29], the circumstances of this case warrant a global approach to sanction rather than the imposition of a separate sanction for each unprofessional act as the facts in this case are so inextricably woven as to make it difficult to meet a clear standard of prescription.

1. Section 40 of the Health Practitioners Tribunal Act and s 195 of the National Law provides a power to award costs.
2. Although the discretion expressed in the National Law as to costs is unfettered, there is no starting point for costs to follow the event and neither is there a starting point that the parties will bear their own costs.
3. In the agreed statement of facts and sanctions the Board and the respondent have reached an agreement that the respondent will pay the Board's costs to be taxed but they have not referenced a scale of costs.
4. In Medical Board of Australia v Shannon Lovell Greene [2025] TASCAT 10, Deputy President Grueber stated at [59]:

... It is common for the Tribunal to award costs in health practitioner matters at 90 per cent of the Supreme Court Scale. Given the issues and conduct of this matter I am satisfied that that is appropriate in this case.

5. I see no reason to depart from the use of the scale in this matter.
6. It is clear that in this matter, the respondent has acquiesced to the Board's position and has agreed to pay the Board's costs.
7. On the material before me I do not consider it appropriate to upset this aspect of the agreement between the parties.

1. I make the following orders:
   1. The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.
   2. The respondent's registration as a registered nurse is cancelled pursuant to s 196(2)(e) of the National Law.
   3. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 years from the date of these orders pursuant to s 196(4)(a) of the National Law.
   4. The respondent is prohibited from providing any health service until the respondent is re-registered pursuant to s 196(4)(b)(i) of the National Law.
   5. The respondent is to pay the Nursing & Midwifery Board of Australia's costs of and incidental to the application calculated at 90% of the scale of fees in Part 1 of Schedule 1 of the Supreme Court Rules 2000 as at the date that the relevant work was undertaken, to be agreed or taxed by a registrar of the Tribunal.