The respondent is reprimanded and disqualified from applying for registration as a nurse for six years from the date of these orders.

1. On 10 July 2018, we made findings that:
   • (a) Between 1 January 2012 and 21 July 2014, by knowingly possessing over 46,000 images and movies containing child pornography, Mr James Hutchinson behaved in a way that constitutes professional misconduct within the meaning of the definition in paragraph (c) of s 5 of the Health Practitioner National Law (Victoria) (National Law), namely conduct whether occurring in connection with the Health Practitioner's profession, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
   • (b) By failing to give notice to the Board, in writing within 7 days, that a relevant event, as defined under s 130 (3)(a)(i) of the National Law had occurred, being that he was charged on 25 September 2014 with knowingly possessing child pornography, Mr Hutchinson behaved in a way that constitutes as unprofessional conduct within the meaning of the definition of unprofessional conduct in paragraph (a) of section 5 of the National Law.
2. The background to the allegations and our reasons for decision were published as Nursing and Midwifery Board of Australia v Hutchinson (Review and Regulation) (No 1) [2018] VCAT 1044. We refer to them without repeating them.
3. Mr Hutchinson did not participate in the previous hearing before us in July. Because the Board at the conclusion of that hearing indicated that they would be seeking orders that Mr Hutchinson be disqualified from applying for registration as a registered nurse for a period of six years, in addition to a reprimand, we directed that the Board file with VCAT and serve on Mr Hutchinson written submissions on determinations for the next hearing.
4. We encouraged him to attend the next hearing and make submissions.
5. To his credit, he did so. Although he did not feel able to attend in person, he participated by telephone, provided submissions by email beforehand and spoke briefly at the hearing.
6. Again, to his credit, Mr Hutchinson told us that the orders sought by the Board seemed appropriate, taking into account other cases involving similar situations referred to by the Board in submissions. He accepts that the outcome is appropriate.
7. We consider that the outcome proposed by the Board is appropriate taking into account the gravity of the conduct, the length of the offending, the number of child exploitation images involved, Mr Hutchinson's delayed acceptance in the criminal proceedings of responsibility for the offending, the sentence received (Community Corrections Order) and the fact he is and will remain on the sex offender register until 11 September 2024.
8. We also agree with the submission of the Board that it was relevant for us to take into account the fact that Mr Hutchinson had only been registered for a short period before the offending commenced.
9. Mr Hutchinson was first registered in March 2011. The offending commenced in January 2012 and continued until 21 July 2014. Mr Hutchinson has not been registered since 2016. Mr Hutchinson failed to renew his registration by 31 May 2016 and as a result his details were removed from the national register on 7 July 2016. We have taken into account the period of time since he was last registered.
10. If Mr Hutchinson were still registered, this is a case where we would cancel his registration. That option is not open to us.
11. We consider it appropriate, however, to disqualify him from applying for registration, and consider a period of six years from the date of these orders appropriately addresses the protective purpose of determinations. In particular, the substantial period of disqualification appropriately addresses specific and general deterrence and appropriately reflects the seriousness of the conduct.
12. We emphasise that our orders do not mean that Mr Hutchinson will be able to be re-registered in six years' time, nor do they mean that it is our view that he will be suitable for registration then, simply that he cannot apply to be registered for that period.
13. If, at any time after that period ends, Mr Hutchinson applies for registration, it will be for the Board to consider the application taking into account the Board's role in providing for the protection of the public. It is not our role to anticipate what might happen in the future or to seek to direct the Board as to what decision it might make in the future.

Determinations under the National Law: general principles

1. The applicable principles are well-established.[1] The primary purpose of determinations is to protect the public not to punish the practitioner. That primary purpose, together with protection of the reputation of the profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained.
2. As the Tribunal observed in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526, [14]:

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish ... Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. With that protective focus in mind, the Tribunal considers a range of factors including any need to deter the individual practitioner from repeating the conduct. Called specific deterrence, this involves an assessment of any ongoing risk posed by the practitioner such as:
   • whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred;
   • whether they have shown genuine remorse and have taken independent steps to reduce the risk of repetition; and
   • whether they have any past disciplinary history, which in turn may suggest that stronger penalties may be required to deter them in future.[2]
2. The Tribunal will also consider how serious the conduct is and whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and so deter them from the same conduct. This is called general deterrence.
3. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at paragraphs 41 to 61, the Tribunal discussed the difference between the determinations of suspension and cancellation and stated as follows:

The major difference between a suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. It is not guaranteed that he will be so re-registered. He must satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration...

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served. [our emphasis]

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct or has been shown to be a serial offender.

1. Determinations in other cases of similar or analogous conduct will provide useful guidance. Consistency and proportionality are important. But every case is different, with its own combination of facts and relevant factors as the following cases illustrate.

1. The Board's submissions refer to several decisions where Tribunals considered cases where a health practitioner has been found guilty of possessing child pornography. Those cases were useful and assisted us to determine the range of penalties imposed in this type of misconduct. The cases were:
   • NMBA v Omant [2015] VCAT 919
   • NMBA v Buckley [2010] QCAT 392
   • NMBA v Brearley [2012] QCAT 323
   • HCCC v Vincent [2012] NSWNMT 2,
   • HCCC v Gillett [2007] NSWNMT 7,
   • Medical Board of Australia v Black [2016] VCAT 892
2. In Omant, the Tribunal found that the practitioner was not a fit and proper person to be registered as a health practitioner and his conduct fell short, to a substantial degree, of the standard of the professional conduct observed by members of the profession of good repute or competency. Mr Omant had pleaded guilty to three offences relating to the use of a carriage service to access child pornography and knowingly possessing child pornography. In reprimanding him and imposing various conditions on his registration, the Tribunal took into account that Mr Omant had been effectively suspended for almost five years prior to the hearing and this was sufficient for the protection of the public.
3. In Buckley, the practitioner had been convicted of downloading child pornography. He possessed approximately 10,000 images of child pornography on his computer. His registration lapsed after he was charged with the offence and he did not participate in the Tribunal hearing. The Tribunal held it would have cancelled his registration had he been registered, and disqualified him from applying for registration for three years.
4. In Brearley, Mr Brearley downloaded images over a 14-month period, some of which were in the most serious of categories. At the time of hearing, he was no longer registered. The Queensland Tribunal disqualified him from applying for registration for three years.
5. In Vincent, which concerned 96 images, the Nursing and Midwifery Tribunal of New South Wales considered slightly different factual circumstances because the charges included dissemination of child pornography via an internet chatroom. The remaining three charges related to possession of a total of 96 images of child pornography. The Tribunal cancelled his registration and disqualified him from applying for a period of four years.
6. In Gillett, the Nursing and Midwifery Tribunal of New South Wales determined to remove the practitioner's name from the roll of practitioners for a period of two years, which is akin to a period of disqualification, Gillett involved possession of child pornography.
7. In Black, the practitioner pleaded guilty to possessing slightly over 100 images of child pornography. The Tribunal found that he had engaged in professional misconduct, reprimanded him and imposed various conditions on his registration. The Tribunal considered that he had self-reported the conduct, received psychiatric assistance, and had shown insight and remorse, but found the conduct was serious and occurred over a period of time. The Tribunal noted that the circumstances of his offending were unique, as the practitioner had been a victim of sexual abuse as a child, his interest in the images was him trying to understand what had happened to him as a child, and he did not seek sexual gratification from viewing the imagery.

1. We agree with the submission on the behalf on the Board that where a health practitioner possesses child pornography, ordinarily their registration would be cancelled. Even if their registration has lapsed, the practitioner would typically be disqualified from applying for registration for periods of time ranging from several months to several years.
2. The disqualification period of six years is longer than the periods referred to above. We agree that a longer period of disqualification is proportionate in this case for a number of reasons including the sheer volume of images downloaded and the categories of images included in those downloaded.
3. As submitted by the Board, the more than 46, 000 images included eight items which contained sadism, bestiality or humiliation, 27 materials depicting penetration of a child, 25 items containing non-penetrative sexual activities between children and adults, and 11 materials showing sexual activities between children or children engaging in solo masturbation. Mr Hutchinson collected this catalogue over an extended period, commencing in January 2012, and continued until July 2014.
4. We agreed with the Board's submission that insight, remorse and prospects of rehabilitation are not yet demonstrated.
5. Mr Hutchinson initially denied knowingly possessing child pornography when interviewed by police on 14 September 2014. He initially pleaded not guilty to the charge of knowingly possessing child pornography but changed his plea to guilty on 12 September 2016 in the Magistrates' court at Frankston. In short, he continued to deny knowingly possessing child pornography for approximately two years.
6. We agree that it is of concern that when Mr Hutchinson admitted the conduct, he claimed not to have known, at the time of the conduct, that it was morally or legally wrong. His behaviour and limited insight is, we agree, astounding given his profession as a nurse.
7. A psychological report presented to the Magistrate's court was not favourable on the question of insight. The writer concluded that Mr Hutchinson fulfilled the criteria of 'unspecified paraphilic disorder', rather than a paedophilic disorder. A paraphilic disorder is a broader disorder, not confined to any specific group or age.
8. A report prepared for the County Court criminal appeal, indicated that Mr Hutchinson was better able to demonstrate an understanding of the harm created by possession of child pornography and would be a reasonable candidate for the successful completion of the sex offender program. In the writer's view, Mr Hutchinson prospects for rehabilitation boded well, provided he remains abstinent from illegal drugs.
9. Mr Hutchinson informed us that he has completed the hours required under the Community Corrections order made by the County Court on resentencing. Although we did not have documentary evidence, he advised us that he had received an assessment and treatment recommendations from SOATS (Specialists Offender Assessment and Treatment Service).
10. He said was directed to undergo six months of group therapy and has 18 sessions left to go. He attended then ceased drug counselling. In his email submissions Mr Hutchinson said that he continued to take synthetic marijuana/ synthetic cannabis and did not find it returned him to the former condition. He also stated he had not had the drugs since 2016 and since that drug has many dangerous effects he will not have it again in any circumstances. In any event, we do not have any independent evidence of successful completion of drug counselling.
11. In his email submissions, Mr Hutchinson described the psychological counselling he received, and the steps taken to address both his understanding of the conduct and the reasons why it was wrong.
12. Mr Hutchinson described the impact on him of the convictions:

I lost my wife, the house that we owned, my career and my income. I left Monash health abruptly and without references. I cannot obtain work without references, and am blocked from doing charity work to obtain references by their requirement for a Working with Children Check. I am 53 years old and have no children. I am now effectively blocked from having the things in life which make life.

I will die in poverty with no children, having achieved nothing, as I am very effectively blocked out many things.

I understand that my behaviour was bad, but find that the consequences brought about by others are very destructive to me. This occurs because of the hatred society has for people looking at the material I looked at, and peoples' desire to defeat those who they see as their enemy. Those in authority bring about destructive consequences maliciously and recklessly. I have never done anything bad to anyone, but I'm blocked from life as though I am a threat to children and everyone else. I believe this mentality of attacking is born in anger, proceeds maliciously and achieves nothing."

1. We agree with the submission on behalf of the Board that Mr Hutchinson has not demonstrated an understanding of the reason why possessing child pornography is treated as such a serious offence. We repeat the remarks made by her Honour, Judge Chambers, in the County Court appeal proceedings:

It is indeed a serious charge. The nature of this type of offending has been repeatedly emphasized by courts as involving one that implicitly involves the exploitation of children, most commonly vulnerable children. Parliament has enacted this legislation in an endeavour to protect those from the implicit harm associated with the possession of child pornography and that is reflected in the maximum penalty [of 10 years imprisonment] a maximum penalty had been increased by parliament over the years.

You Mr Hutchinson, as a consumer of child pornography, bear responsibility for your part in creating [the market for child pornography] and therefore for the exploitation of the children who I saw in the images that I viewed.

1. As we noted in our previous decision, the code of professional conduct for nurses in Australia, refers explicitly to sexual pornography and contains the following statements:

Conduct statement

Nurses promote and preserve the trust and privilege of inherent in the relationship between nurses and people receiving care

Explanation

...

2...Nurses recognise that vulnerable people, including children, people with disabilities, people with mental illness and frail older people in the community must be protected from sexual pornography and physical harm.

1. As we stated in our previous decision, it is, frankly, abhorrent that a member of the nursing profession would commit an offence that by its nature implicitly involves the exploitation of vulnerable children.
2. While it should not be necessary to deter members of the nursing profession from committing child pornography offences, we regard it as appropriate to signal, by our determinations, the serious consequences that will follow.

[1] See for example Ha v Pharmacy Board of Victoria [2002] VSC 322, [97]; Medical Board of Australia v Janz [2011] VCAT 1026, [358]-[373]

[2] See for example Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 in relation to assessment of insight.