1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (c) of section 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of section 5 of the National Law.

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (b) of section 5 of the National Law.

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (b) of section 5 of the National Law.

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a), (b) and (c) of section 5 of the National Law.

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (c) of section 5 of the National Law.

1. The respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (c) of section 5 of the National Law.

1. The principal registrar is directed to attempt to provide a copy of these findings to the respondent.
2. The respondent is to be given the opportunity to contact the Tribunal and make submissions concerning determinations.
3. The proceeding is adjourned to an administrative mention on 30 March 2020.

Note: You are not required to attend the Tribunal on this day but must advise the Tribunal in writing about the further conduct of this matter.

1. Under cover of its letters dated 19 February 2018 (Z125/2018) and 6 December 2018 (Z1090/2018), the Nursing and Midwifery Board of Australia (the Board) made two referrals to the Tribunal pursuant to section 193(1)(a)(i) of the National Law, and by each referral, it has made the allegations contained within it.
2. On 14 March 2019, the Tribunal ordered that the allegations contained in Z125/2018 and Z1090/2018 be consolidated pursuant to section 82(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
3. On 17 April 2019 the Board filed a Consolidated Notice of Allegations with the Tribunal. A copy of the Consolidated Notice of Allegations is appended to these reasons (Appendix A).
4. At the hearing of this matter on 15 May 2019, there was no appearance by or on behalf of the respondent. Having considered the efforts made by the Board to bring these proceedings and the hearing to the attention of the respondent, the Tribunal was satisfied that the respondent has been given notice of the hearing.
5. At the hearing, the Board relied upon the contents of two volumes of material which had been filed with the Tribunal and this material was received into evidence. As there was no challenge to this material, the Tribunal is satisfied that it can act on the material and take the contents of the material at face value.

1. The respondent's conduct in respect of Allegation 1 is comprehensively set out in the Victoria Police Brief of Evidence[1], the transcript of proceedings[2] and the certified extract of the Court's order.[3] In respect of the conducted referred to in Allegation 1, the Tribunal finds the following:

1. on 23 December 2015, the respondent was charged with the theft of a wallet from the Geelong Private Hospital. The wallet belonged to a deceased patient; 2. the respondent contested the charge;

1. on 10 June 2016, the matter proceeded as a contested hearing. The respondent was found guilty of the charge of theft and was, with conviction, order to pay a fine;[4] and

1. despite the finding of guilt, the respondent apparently denies the conduct underlying the above sentence and conviction. The respondent informed Chad Saunders, an Investigator employed by the Australian Health Practitioner Regulation Agency (AHPRA), that:[5]

(3) she had never in her career been charged with stealing.

1. The respondent's conduct in respect of Allegation 2 is comprehensively set out in the Victoria Police Brief of Evidence.[6] In respect of the conduct referred to in Allegation 2, the Tribunal finds the following:

1. on 4 February 2014, the respondent was charged with the theft of $3,500 from her housemate and making a false report; 2. the respondent moved into her housemate's house two weeks before the offending;

1. the house had CCTV. On the day of the incident, the CCTV showed the respondent collecting secateurs from the garden shed and making scratch marks on the laundry window. No other person was shown entering or leaving the house that day;

1. the respondent then sent her housemate a text message "Chell it's Kerry ring me quickly, bye". The victim returned home and the respondent reported to her that she had gone out and when she returned home she discovered the house had been broken into. The victim and respondent reported the matter to police; 2. on 20 October 2014, the respondent entered a plea of guilty to both charges and was, without conviction, fined.[7]
2. In respect of the conducted referred to in Allegation 3, the Tribunal finds the following:
   1. the respondent failed to notify the Board of the matters in respect of Allegations 1 and 2.
3. In respect of the conducted referred to in Allegation 4, the Tribunal finds the following:

1. on 30 May 2014, the respondent, in respect of the Renewal of Registration Application 2014, answered that there was no change in her criminal history in the preceding year.[8] At that time, she was the subject of the charges set out in the 4 February 2014 charge sheet (as relevant to Allegation 1); 2. on 1 June 2015, the respondent, in respect of the Renewal of Registration Application 2015, answered that there was no change in her criminal history in the preceding year.[9] At that time, she was the subject of the charges set out in the 23 December 2015 charge sheet (as relevant to Allegation 2); and

1. the National Law defines 'criminal history' to include every charge made against a person for an offence (section 5 of the National Law).
2. The respondent's conduct in respect of Allegation 5 is comprehensively set out in the Victoria Police Brief of Evidence,[10] the transcript of proceedings[11] and the certified extract of the court's order.[12] In respect of the conduct, the Tribunal finds the following:
   1. on 11 January 2018, the respondent was charged with two counts of the theft, namely:

(1) theft of currency belonging to Scott Meyer, a family member of a resident under the care of her employer, Coates Hostel, and valued at $200; and

(2) theft of currency belonging to Lauren Edwards, a physiotherapist providing care to residents of Coates Hostel, valued at $235;

1. on 7 June 2018, the respondent was found guilty of the two counts of theft and was, with conviction, ordered to pay a fine.[13]

1. The respondent's conduct in respect of Allegation 6 is set out in the Victoria Police Brief of evidence[14] and the transcript of proceedings.[15] In respect of the conduct, the Tribunal finds the following:

1. on or about 12 May 2017, the respondent accompanied Wayne Holland to Bendigo Bank at Kangaroo Flat; 2. the respondent assisted Mr Holland to withdraw $5,000 in cash; and

1. Mr Holland has an intellectual disability.
2. The respondent's conduct in respect of Allegation 7 is comprehensively set out in the Victoria Police Brief of Evidence,[16] the transcript of proceedings[17] and the certified extract of the court's order.[18] In respect of the conduct, the Tribunal finds the following:
   1. on 20 June 2017, the respondent was charged with one count of theft of unleaded petrol belonging to Caltex and valued at $30;
   2. on 23 November 2017, at Bendigo Magistrates' Court, the respondent pleaded guilty and was convicted of theft in relation to her conduct.[19]

1. The Tribunal must ascertain the degree of seriousness of the conduct as a matter of the extent to which the conduct departs from the proper standards of professional conduct of a nurse.
2. The primary allegations are of professional misconduct. This term is defined in section 5 of the National Law as including:

1. 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; 2. 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

1. 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.
2. The allegations have also been put in the alternative as unprofessional conduct. This term is also defined in section 5 of the National Law.

1. It is well established that the Board must prove its case on the balance of probabilities in accordance with the test in Briginshaw.[20] The Tribunal must reach a comfortable level of satisfaction in finding the matters proved on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.
2. Her Honour Judge Jenkins recently restated the position in Medical Board of Australia v Alkazali:[21]

In Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited [2013] VSCA 305 the Court of Appeal again had occasion to consider the B_riginshaw_ test in the context s 140 of the Evidence Act 2008. The Court observed that while the considerations embodied in the Briginshaw test are now reflected in s 140 of the Evidence Act 2008, that Act only applies to proceedings in a Victorian court (Evidence Act 2008, s 4) which is defined to include persons or bodies required to apply the laws of evidence. The VCAT Act makes plain that the Tribunal is not bound by the rules of evidence. Accordingly:

... provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law... it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue (at [36]-[37]).

1. In relation to Allegations 1, 2, 5 and 7, consistently with the reasoning in Psychology Board of Australia v Milosevic[22] and Nursing and Midwifery Board of Australia v Hawthorne,[23] the Tribunal relies upon the convictions and findings of guilt in the Magistrates' Court as proof of the conduct upon which the convictions and findings of guilt were based.

1. In respect of the conduct contained in Allegation 1, the Tribunal is satisfied that conduct amounts to professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.
   • (a) Criminality: The respondent was found guilty of the offence charged, namely theft of the wallet of a deceased patient at Geelong Private Hospital. The finding followed a contested hearing. In sentencing the respondent, her Honour Magistrate McGarvie remarked that:

"... you, acting as a nurse, are dealing with vulnerable people ... they rely on the people around them to care for them and look after them as well as their belongings";[24]

(b) Connection to practice: The connection is clear and was aptly put by her Honour Magistrate McGarvie. It is inherent in a nurse's role that they deal with vulnerable patients and those patients are reliant upon them. The respondent's conduct was a clear exploitation of her position as a nurse which allowed her to access the deceased's wallet;

(c) Code of Professional Conduct for Nurses in Australia: The respondent's conduct manifestly falls short of the Code, which states that:

Nurses take all reasonable steps to ensure the safety and security of the possessions and property of persons requiring and receiving care;

(d) Community expectations: The respondent's conduct would not satisfy community expectations. Members of the community would be rightly concerned to learn that a nurse had taken advantage of the recent death of a patient by stealing their wallet. The wallet belonged to the deceased's estate and in the circumstances was clearly a very personal item of the deceased's family;[25] and

(e) Reputation of the profession: The respondent's conduct poses a reputational risk to the profession for the reasons expressed above. The conduct constitutes a significant breach of trust, it undermines the community's confidence in the nursing profession and it breaches fundamental ethical standards in nursing.

1. In respect of Allegation 2, the Tribunal finds that the conduct set out in the allegation amounts to professional misconduct within the meaning of paragraphs (a), (b) and (c) of the definition of professional misconduct in section 5 of the National Law.
   • (a) Criminality: The respondent entered a plea of guilty to theft and providing a false report. She was without conviction found guilty and a financial penalty was imposed; and
   • (b) Code of Professional Conduct for Nurses in Australia: The respondent's conduct manifestly falls short of the Code, which states that:

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public;

(c) Reputation of the profession: Any dishonesty offence naturally poses a risk to the good reputation of the profession. A nurse is in a unique position of care and trust, often in public institutions, and patients and their families need to be certain that the nurse is someone who can act honestly around vulnerable persons.

1. In respect of Allegations 3 and 4, the Tribunal finds that the respondent behaved in a way that constituted professional misconduct, being 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 (section 5, subparagraph (b) of the National Law).
2. In respect of Allegation 3, the Tribunal finds that the conduct undermines the Board's capacity to carry out its role in protecting the public and regulating professional standards. Evidentially it is important the Board's function of overseeing the suitability of those in the profession is not impaired. The failure to provide notice in the circumstances impaired that function.
3. In respect of the conduct contained in Allegation 4, the Tribunal finds the following:

(a) Connection to practice: It is a requirement of practice that nurses provide annual and ongoing disclosure of their criminal history. The Renewal of Registration Application clearly asks about an applicant's criminal history.

(b) Dishonesty: The respondent does not suggest in her response statement that she misunderstood the definition of criminal history. She indicated on her renewal form that there was no change to her criminal history. Such an action is not inconsistent with her pattern of dishonest behaviour.

(c) Reputation of the profession and protection of the public: The requirement for ongoing disclosure is important to the maintenance of the good reputation of the profession. It ensures that the Board is aware of any developments in a nurse's criminal history that may affect their ability to safely and effectively discharge their duties. As stated above, misleading the board prevents it fulfilling this function.

(d) Community expectations: The community would be concerned to learn that the accurate recording of such disclosures was not being maintained.

1. In respect of the conduct contained in Allegation 5, Tribunal finds that the respondent's conduct amounted to professional misconduct within the meaning of paragraphs (a), (b) and (c) of the definition of professional misconduct in section 5 of the National Law.

(a) Criminality: The respondent was found guilty of the offences charged, namely theft from a family member of a resident and a physiotherapist for residents at an aged care facility at St Arnaud. The finding followed a contested hearing.

(b) The conduct was not isolated, but occurred following previous convictions and findings of guilt for theft and over the course of five weeks;

(c) Connection to practice: the dishonesty offences occurred within the clinical context of the respondent's professional role, namely, the conduct occurred at the aged care facility in St Arnaud at which she was employed and the victims were connected with residents of the facility;

(d) Code of Professional Conduct for Nurses in Australia: The respondent's conduct manifestly falls short of the Code, which states that:

Nurses take all reasonable steps to ensure the safety and security of the possessions and property of persons requiring and receiving care;

(d) Community expectations: The respondent's conduct would not satisfy community expectations. Members of the community would be rightly concerned to learn that a nurse had taken advantage of people connected to residents of their place of employment; and

(f) Reputation of the profession: The respondent's conduct poses a reputational risk to the profession for the reasons expressed above. The conduct constitutes a significant breach of trust, it undermines the community's confidence in the nursing profession and it breaches fundamental ethical standards in nursing.

1. In respect of Allegation 6, the Tribunal finds that the respondent engaged in professional misconduct with the meaning of paragraph (c) of the definition contained in section 5 of the National Law. That is particularly so given that the sum involved was significant and the victim was intellectually disabled.
2. In relation to Allegation 7, the Tribunal finds that the respondent engaged in professional misconduct with the meaning of paragraphs (a) and (c) of the definition contained in section 5 of the National Law.
   • (a) Criminality: The respondent entered a plea of guilty to theft. She was convicted, a financial penalty was imposed, and she was ordered to engage with counselling and medical treatment as recommended by her health professionals; and
   • (b) Code of Professional Conduct for Nurses in Australia: The respondent's conduct manifestly falls short of the Code, which states that:

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public;

(c) Reputation of the profession: Any dishonesty offence naturally poses a risk to the good reputation of the profession. A nurse is in a unique position of care and trust, often in public institutions, and patients and their families need to be certain that the nurse is someone who can act honestly around vulnerable persons.

1. Ms Johnson has not made any admissions, and has otherwise declined to participate in these proceedings.

1. The Board submits that the appropriate determinations in this matter are that the Tribunal impose a global sanction in respect of the Allegations, being:
   1. a reprimand pursuant to section 196(2)(a) of the National Law;
   2. cancellation of the practitioner's registration pursuant to section 196(2)(e) of the National Law; and
   3. disqualification from applying for registration as a health practitioner for a period of 4 years pursuant to section 196(4)(a) of the National Law.

The allegations in respect of Ms Kerry Louise Johnson (Ms Johnson) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Nursing and Midwifery Board of Australia (Board) pursuant to section 193(1)((a) of the Health Practitioner Regulation National Law (National Law) are:

1. That Ms Johnson engaged in:
   • (a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 10 June 2016, Ms Johnson was convicted in the Magistrates' Court of Victoria of one charge under section 74 of the Crimes Act 1958 (Vic) (Crimes Act).

The particulars include, but are not limited to:

(i) the conviction was·in relation to charge one on indictment number GI0096753, to which Ms Johnson pleaded not guilty; and

(ii) the conviction was in respect of a charge laid against Ms Johnson on or about 23 December 2015, specifically:

• (A) one charge of theft; namely that at Geelong on 15 December 2013, Ms Johnson did steal a wallet containing personal documents in the name of George Hanley being property belonging to Kaylene Bishop and valued at $50;

(iii) the nature of the conviction does or may affect Ms Johnson's suitability to practise;

(iv) the conduct giving rise to the conviction was in connection with the practice of nursing because it involved misappropriation of the wallet of a deceased patient/ former patient ofGeelong Private Hospital.·

1. That Ms Johnson engaged in:
   • (a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

and/or

(b) unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

The particulars. include, but are not limited to:

(i) the findings of guilt were in relation to charges one and two on indictment number E10457053, to which Ms..Johnson pleaded guilty; and

(ii) the findings of guilt were.in respect of charges laid against Ms Johnson on or about 4 February 2014, specifically

• (A) one charge of causing a false report to be made to police; namely that at Belmont on 6 August 2013, Ms Johnson falsely and with knowledge of the falsity of the report voluntarily caused to be reported to any member of the Victorian Police an act, namely burglary and theft at 1/15 Roslyn Road Belmont, which required investigation by a member of the Victoria Police; and
• (B) one charge of theft; namely that at Belmont between 31 July 2013 and 5 August 2013, Ms Johnson did steal $3,500 cash being property belonging to Michelle Newling and valued at $3,500;
  • (iii) the nature of the findings of guilt does or may affect Ms Johnson's suitability to practice.

1. That Ms Johnson engaged in:
   • (a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (b) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct in section 5 of the National Law;

1. 8 February 2016; and/or
2. 20 June 2016; and/or

Ms Johnson contravened section 130(1) of the National Law by failing to give notice within seven days that a relevant event occurred.

The particulars in relation to A and B above include, but are not limited to:

(i) At all material times Ms Johnson was a registered nurse;

(ii) On or about 23 December 2015, Ms Johnson was charged with one count of theft under section 74 of the Crimes Act;

(iii) The charge referred to in (ii) related to an offence punishable by 12 months' imprisonment or more;

(iv) The first mention date for the hearing of the charge was 15 February 2016;

(v) Section 16 of the Criminal Procedure Act 2009 (Vic) provides that a summons to answer a charge for an indictable offence being heard and determined summarily must be served on the offender at least 14 days prior to the first mention date;

(vi) On or about 10 June 2016, Ms Johnson was convicted in the Magistrates' Court of Victoria of the offence referred to in (ii);

(vii) Ms Johnson did not notify the Board at any time that she had been charged with and/or convicted of the offence referred to in (ii).

The particulars in relation to C and D above include, but are not limited to:

(viii) At all material times Ms Johnson was a registered nurse;

(ix) On or about 4 February 2014, Ms Johnson was charged with:

(A) one count of causinga false report to be made to police contrary to section 53(1) of the Summary Offences Act;

(B) one count of theft contrary to section 74 of the Crimes Act;

(x) The charges referred to in (ix) above were offences punishable by 12 months' imprisonment or more;

(xi) The first mention date for the hearing of the charges was 9 April 2014;

(xii) Section 16 of the Criminal Procedure Act 2009 (Vic) provides that a summons to answer a charge for·an indictable offence being heard and determined summarily must be served on the offender at least 14 days prior to the first mention date;

(xiii) On or about 20 October 2014, Ms Johnson was found guilty in the Magistrates' Court of Victoria of the offences referred to in (ix);

(xiv) Ms Johnson did not notify the Board at any time that she had been charged with and/or found guilty of the offences referred to in (ix).

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (b) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of subparagraph (a) of the definition of unprofessional conduct in section 5 of the National Law; ··

in that in her application(s) for renewal of her registration submitted in or around May 2014 and/or in or around June 2015, Ms Johnson knowingly made a false or misleading declaration to the Board, or was reckless as to whether she misled the Board, in relation to her criminal history.

(i) At all material times Ms Johnson was a registered nurse;

(ii) in or around May 2014 and June 2015, Ms Johnson applied for renewal of her registration; ·

(iii) Pursuant to section 107 of the National Law, the applications referred to in (ii) were accompanied by an annual statement in the terms of section 109 of the National Law;·

(iv) The annual statements referred to in (iii) included the following question:

Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?

(v) Ms Johnson answered No to the question referred to in (iv);

(vi) Ms Johnson's answer in her May 2014 statement was false or misleading in that by that date she had been charged With one count of causing a false report to be made to police contrary to section 53(1) of the Summary Offences Act and one count of theft under section 74 of the Crimes Act; ·

(vii) Ms Johnson's answer in her June 2015-statement was false or misleading in that by that date she had been found guilty in the Magistrates' Court of Victoria of one count of causing a false report to be made to police contrary to section 53(1) of the

Summary Offences Act 1966 (Vic) and one count of theft under section 74 of the Crimes Act.

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

(b) unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 7 June 2018, Ms Johnson was convicted in St Arnaud Magistrates' Court of two charges under section 74 of the Crimes Act.

(i) the convictions were in relation to charges one and two on indictment number J10239385, to which Ms Johnson pleaded guilty;

(ii) the convictions were in respect of two charges laid against Ms Johnson on or about 11 January 2018, specifically:

(A) one charge of theft; namely that at St Arnaud between 11 January 2017 and 17 February 2017, Ms Johnson did dishonestly appropriate Australian currency belonging to Scott Meyer and valued at $200;

(B) one charge of theft; namely that at St Arnaud between 19 January 2017 and 17 February 2017, Ms Johnson did dishonestly appropriate Australian currency belonging to Lauren Edwards and valued at $235;

(iii) the nature of the convictions do or may affect Ms Johnson's suitability to practise;

(iv) the conduct giving rise to the convictions was in connection with the practice of nursing because it involved the son and a physiotherapist of residents of Ms Johnson's then employer, Coates Hostel, and occurred during the course of her practice as a registered nurse;

(v) at all material times, the Board's Code of Professional Conduct for Nurses (Code) provided that:

Nurses take all reasonable steps to ensure the safety and security of the possessions and property of persons requiring and receiving care.

The conduct of nurses maintains and builds public trust and confidence in the profession at all times.

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (c) of section 5 of the National Law;

in that, on or about 12 May 2017, Ms Johnson solicited money from Wayne Holland, a resident of her former workplace, Benetas Kangaroo Flat (Benetas), whom she knew or ought to have known was intellectually disabled.

(A) became a resident of Benetas in or around September 2016; arid

(B) at all relevant times, was incapable of making financial decisions on his own behalf;

(ii) at all relevant times, Wayne Holland's brother, Leonard Holland, had an enduring power of attorney (financial) in respect of Wayne Holland's finances;

(iii) between on or about 4 July 2016 until7 July 2016, Ms Johnson was employed at Benetas and worked approximately four shifts at Benetas;

(A) Ms Johnson accompanied Wayne Holland to Bendigo Bank at Kangaroo Flat, where she assisted him to withdraw $5,000 in cash;

(B) following the cash withdrawal, Wayne Holland gave the $5,000 cash to Ms Johnson;

(A) at approximately 10.50am, Tanya Richens, a customer service officer at Benetas, answered a telephone call to Benetas from a female, who asked to speak to Wayne Holland;

(B) Ms Richens asked the caller to call back in 10 minutes;

(C) at approximately 11.00am, Ms Richens answered a telephone call to Benetas from a female, who asked to speak to Wayne Holland and provided a name of 'Joan Little';

(D) Ms Richens gave the telephone to Wayne Holland;

(E) following the telephone call, Wayne Holland appeared agitated and disclosed to Ms Richens that the caller had asked to meet him at Kangaroo Flat IGA and that he had given the caller $5,000;

(F) Ms Richens notified Wayne Holland's brother, Leonard Holland;

(G) Leonard Holland attended Benetas and inspected Wayne Holland's passbook, which recorded a withdrawal of $5,000 on 12 May 2017 at Bendigo Bank at Kangaroo Flat;

(H) when asked about the withdrawal recorded in his passbook; Wayne Holland responded that he thought he was lending the money to a family member and that Leonard Holland had approved the withdrawal;

(I) Leonard Holland drove Wayne Holland to Kangaroo Flat IGA and asked Wayne Holland to wait for the caller while he observed from a distance;

(J) Leonard Holland observed a female call out, 'Wayne I'm over here... Wayne over here';

(K) Leonard approached the female and said, 'I am here to get back the money you stole from Wayne last Thursday';

(L) the female responded that she 'didn't know what [he was] talking about and that [she was] yelling out to a friend called Dwayne';

(vi) at the time of the transaction identified in (iv) above, the Code provided that:

An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care.

Nurses take all reasonable steps to ensure the safety and security of the possessions and property of persons requiring and receiving care.

The conduct of nurses maintains and builds public trust and confidence in the profession at all times.

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.

(vii) at the time of the transaction identified in (iv) above, the Board's A Nurse's Guide to Professional Boundaries (Guide to Professional Boundaries) provided that:

The community trusts that nurses will act in the best interest of those in their care and that the nurse will base that care on an assessment of the individual's specific needs. The power imbalance present in a professional relationship places the recipients of care in a position of vulnerability and of potential exposure to exploitation or abuse if that trust is not respected.

Professional boundaries in nursing are defined as limits which protect the space between the professional's power and the client's vulnerability ... When a nurse crosses a boundary, they are generally behaving in an

unprofessional manner and misusing the power in the relationship.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (c) of section 5 of the National Law;

(b) unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 23 November 2017, Ms Johnson was convicted in Bendigo Magistrates' Court of one charge under section 74 of the Crimes Act.

(i) the conviction was in relation to charge two on indictment number H11721562, to which Ms Johnson pleaded guilty, namely: ·

(A) one charge of theft; in that at Bendigo on 26 May 2017, Ms Johnson did steal unleaded petrol being property belonging to Caltex and valued at $30;

(ii) the nature of the conviction does or may affect Ms Johnson's suitability to practise because it relates to a dishonesty offence; ·

(iii) at all material times, the Board's Code of Professional Conduct for Nurses (Code) provided that:

The conduct of nurses maintains and builds public trust and confidence in the profession at all times.

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.

[1] Victoria Police Brief of Evidence, TB 1, Tab 7, pp 142-161.

[2] Transcript of proceedings dated 10 June 2016, TB 1, Tab 8, pp 162-224.

[3] Certified Extract of Court Orders, TB 1, Tab 10, p 227.

[4] Certified Extract of Court Orders, TB 1, Tab 10, p 227.

[5] File Note of Conversation, TB 1, Tab 17, p 252.

[6] Victoria Police Brief of Evidence, TB 1, Tab 6, pp 91-141.

[7] Certified Extract of Court Orders, TB 1, Tab 9, p 225-226.

[8] Renewal of Registration Application, TB 1, Tab 11, p 228.

[9] Renewal of Registration Application, TB 1, Tab 12, p 229.

[10] Victoria Police Brief of Evidence, TB 2, Tab 7, pp 358-413.

[11] Transcript of proceedings dated 7 June 2018, TB 2, Tab 9, pp 497-506.

[12] Certified Extract of Court Orders, TB 2, Tab 11, pp 621-622.

[13] Certified Extract of Court Orders, TB 2, Tab 11, pp 621-622.

[14] TB 2, Tab 8, pp 429, 431, 438-443.

[16] Victoria Police Brief of Evidence, TB 2, Tab 8, pp 414-496.

[17] Transcript of proceedings dated 7 June 2018, TB 2, Tab 10, pp 507-620.

[18] Certified Extract of Court Orders, TB 2, Tab 12, pp 623-624.

[19] Certified Extract of Court Orders, TB 2, Tab 12, pp 623-624.

[20] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[21] [2017] VCAT 39.

[22] [2013] VCAT 12.

[23] [2018] VCAT 890; see esp. [30].

[24] Transcript of proceedings dated 10 June 2016, TB 1, Tab 8, p 223.

[25] Nursing and Midwifery Board of Australia v Nguyen [2016] VCAT 2143, [15].