1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009, the respondent is reprimanded.
2. Under section 196(4)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009, the respondent is disqualified from applying for registration as a registered health practitioner before 12 July 2022.

1. Mr Lawrence Pang was first registered as a nurse by the Nursing and Midwifery Board of Australia (Board) on 9 January 2012. His registration lapsed on 7 July 2016 and he has not applied to be re-registered since.
2. In about April 2016, Mr Pang was working as a registered nurse at a rehabilitation clinic. He then applied for work as a receptionist at a dental clinic. As part of that process, he was asked to provide a criminal history check and a valid Working with Children check. Mr Pang refused to do so.
3. In the course of discussing his refusal with the dental clinic manager, Mr Pang disclosed the convictions mentioned below. A registered nurse working at the clinic checked the Board's website and found Mr Pang was a registered nurse. She notified the Board about the criminal convictions and that led to an investigation.
4. On 11 February 2016, in the Magistrates' Court of Victoria, Mr Pang pleaded guilty to and was convicted of one count of knowingly possessing child pornography. Two other related charges were withdrawn.
5. The Presiding Magistrate made a Community Corrections Order for a period of two years. That order required Mr Pang to, amongst other things, undergo an offending behaviour program and treatment and rehabilitation. We were informed Mr Pang had complied with those requirements.
6. Because of the convictions, Mr Pang was registered on the Sex Offender Register and, as required by the Sex Offender Registration Act 2004 (Vic), he must report to police for eight years, that is, until 2024.
7. The outcome of the Board's investigation was Mr Pang's referral to this Tribunal to consider his conduct and decide what, if any, findings or determinations ought to be made about his professional registration. The allegations referred to the Tribunal concerned Mr Pang's conviction, his failure to notify the Board he had been charged with the relevant offences and an event involving a child which occurred in December 2014. We will come to the detail of those allegations shortly.
8. By the time the matter came before this Tribunal for hearing, the parties had prepared an agreed statement of facts and also agreed on proposed findings and determinations to be made under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).
9. Mr Pang did not deny any of the conduct described in the allegations. He admitted the conduct amounted to professional misconduct and unprofessional conduct. We had no difficulty making those findings based on the agreed statement of facts.
10. Mr Pang agreed he should be reprimanded for his conduct. He also agreed that he ought to be disqualified from applying to again be registered by the Board for four years from our decision.
11. We were satisfied those were appropriate determinations and so made the orders set out above.
12. Once any disqualification period ends, Mr Pang may apply to the Board for registration. The Board would then consider Mr Pang's past criminal convictions, his professional conduct, the steps he had taken since 2016 and any other relevant material, such as psychological reports, when deciding whether his application ought to be granted.
13. It is not the Tribunal's role to anticipate what might happen in four years or seek to direct the Board as to what decision it might make if Mr Pang decides to apply for registration at some time after July 2022. It will be for the Board to consider the material Mr Pang produces at that time and assess it, taking into account a range of matters including the Board's role in protecting the public.
14. We accepted the period of disqualification before an application for registration may be made was appropriate in part because, when added to the two-year period Mr Pang had not been registered before the hearing, in total he would not be able to be registered to work as a nurse for at least six years.
15. We were satisfied that the total period sent a clear message to Mr Pang about the reprehensible nature of his conduct and would serve as a deterrent to other nurses that conduct of that kind would risk them being prohibited from practising in their profession for a considerable period.
16. We were also satisfied that the determinations would assist to maintain proper ethical and professional standards to protect the public and to protect the standing of the profession in the eyes of the public.

1. The following comes from the parties' statement of agreed facts.
2. As described above, the Board was notified about Mr Pang's criminal conviction by the dental clinic staff member.
3. In the course of its investigation, the Board found:
   • In late December 2014, at a public place, Mr Pang was alleged to have attempted to take a photograph up the dress of a twelve-year-old child using his mobile phone;
   • The father of the child reported the incident to Victoria Police two days later;
   • In March 2015, a witness in this proceeding informed Victoria Police that he had spoken to Mr Pang about the matter and that Mr Pang had admitted to attempting to take the photograph and apologised for his behaviour;
   • On 24 April 2015:
     • A search warrant was executed at Mr Pang's home address and a computer tower was seized on which child exploitation material was subsequently identified;
     • Mr Pang admitted to Victoria Police that he had attempted to take the photograph; and
     • Mr Pang was charged with one count of knowingly possessing child pornography, one count of attempting to make child pornography and one count of committing an indecent act in the presence of a child;
   • On 29 May 2015, Mr Pang admitted to Victoria Police that he had downloaded child exploitation material to his computer; and
   • On 11 February 2016, in the Magistrates' Court of Victoria, Mr Pang pleaded guilty to, and was convicted of, one count of knowingly possessing child pornography. The remaining charges were withdrawn.
4. As noted earlier, due to the charges and conviction, Mr Pang decided to allow his registration to lapse on 7 July 2016 and has not applied to be re-registered since.

1. The allegations were that Mr Pang had engaged in professional misconduct and unprofessional conduct contrary to the National Law.
2. The National Law defines 'professional misconduct', in the context of a registered health practitioner, as including:
   • (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) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
3. The National Law relevantly defines 'unprofessional conduct' as 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers'.
4. The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law.
5. Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.
6. The Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences - the latter is known as general deterrence.[1]
7. The parties agreed and we accepted the Tribunal had the power in this case to impose a reprimand and, given Mr Pang's registration has lapsed, we could impose a period during which Mr Pang is disqualified from applying for registration.[2]
8. The Board made submissions about how the Tribunal ought to approach proposed agreed findings and determinations under the National Law.[3] Mr Pang's counsel did not take issue with those submissions.
9. We agreed:
   • It is the Tribunal's duty to determine the level of conduct alleged and the determinations to be imposed;
   • No agreement between a regulator and the professional person under review can supplant that duty; but
   • The agreement between the parties is, though, a highly relevant and important matter to be taken into account. That is particularly so if it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances;[4]
10. The High Court of Australia considered the role of agreed submissions similar to these in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors,[5] a civil penalty case under the Building and Construction Industry Improvement Act 2005 (Cth).
11. The Board drew our attention to the Court's statement that there were important public policy benefits in receiving, and if appropriate, accepting agreed penalty submissions.[6] It also referred us to paragraph 58 which says:

Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty (our emphasis - citations omitted).

1. We noted that, when discussing whether Barbaro v The Queen[7] applied to civil penalty cases, the Court also said this at paragraphs 48 to 49:

. . . those cases make plain that the court is not bound by the figure suggested by the parties. The court asks "whether their proposal can be accepted as fixing an appropriate amount" and for that purpose the court must satisfy itself that the submitted penalty is appropriate.

Nor is it "pious" to suppose that judges will do their duty, as they have sworn to do, and therefore reject any agreed penalty submission if not satisfied that what is proposed is appropriate. It would be a travesty of justice if that were not the case. It may be presumed that a judge will do his or her duty according to the oath of office. The public may have confidence that it will be so (the Court's emphasis - citations omitted).

1. The Board made three allegations when it referred Mr Pang to the Tribunal.

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraphs (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 11 February 2016, Mr Pang was convicted in the Magistrates' Court of Victoria of one count of knowingly possessing child pornography under section 70(1) of the Crimes Act 1958 (Vic) (Crimes Act).

(i) The conviction was for charge number 3 on case number F12756878 whereby Mr Pang at Ringwood in the State of Victoria on 24 April 2015 did knowingly possess images which depicted a minor under the age of 18 years engaging in sexual activity.

(ii) The nature of the conviction is such that it affects or may affect Mr Pang's suitability to continue to practise in the profession of nursing.

(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 the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 21 December 2014 at a public place, Mr Pang behaved in an unlawful and/or unethical manner such that he risked adversely affecting the reputation and standing of the profession in the eyes of the public when he photographed and/or attempted to photograph up the dress of a child.

(i) At all material times, Mr Pang was a registered nurse;

(ii) On or about 21 December 2014 at a public place Mr Pang attempted to photograph up the dress of a 12 year old female child using a mobile phone;

(iii) On or about 4 January 2015, in a conversation with a witness in this proceeding, Mr Pang admitted that he had attempted to take a photograph up the dress of the child;

(iv) The Code of Professional Conduct for Nurses in Australia (August 2008) provides that:

(A) The conduct of Nurses maintains and builds public trust and confidence in the profession at all times (Conduct Statement 9.1); and

(B) 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. Mr Pang admitted to the behaviour described in allegations 1 and 3.
2. He also agreed that the conduct described in those allegations constituted professional misconduct within the meaning of paragraphs (b) and (c) of the National Law.

That Mr Pang engaged in unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct in section 5 of the National Law in that on and from 25 November 2015 Mr Pang contravened section 130(3)(a) of the National Law by failing to give notice within 7 days that a relevant event occurred.

(i) At all material times Mr Pang was a registered nurse;

(ii) On or about 24 April 2015, Mr Pang was charged with:

(A) one count of knowingly possessing child pornography contrary to section 70(1) of the Crimes Act;

(B) one count of attempting to make child pornography contrary to sections 321M and 68 of the Crimes Act; and

(C) one count of committing an indecent act in the presence of a child contrary to section 47(1) of the Crimes Act; and

(iii) The above charges were offences punishable by 12 months imprisonment or more;

(vi) The first mention date for the hearing of the charges was 2 December 2015;

(vii) Section 16 of the Criminal Procedure Act 2009 (Vic) provides that a summons to answer a charge for an indicatable offence being heard and determined summarily must be served on the offender at least 14 days prior to the first mention date [in this case, on around 18 November 2015];

(viii) Mr Pang did not notify the Board at any time that he had been charged with the above offences.

1. Mr Pang admitted he had failed to notify the Board of the criminal charges having been laid. In his correspondence to the Board, Mr Pang had explained that he was informed after his conviction that all relevant authorities would be notified and so he did not believe he was required to separately contact the Board.
2. Mr Pang also agreed that he had engaged in unprofessional conduct within the meaning of the definition in the National Law.

1. We made these findings on the balance of probabilities, comfortably satisfied they were open on the evidence taking into account the seriousness of the allegations and the consequences of findings such as these.
2. As a question of fact, we were satisfied on the material before us and on the admissions made by Mr Pang that he engaged in the conduct described in the three allegations.
3. We were satisfied that the conduct which led to the conviction described in allegation 1 amounted to professional misconduct within paragraph (c) of the definition of that term, because that conduct was inconsistent with Mr Pang being a fit and proper person to hold registration in the nursing profession.
4. We agreed with the Board's submissions and found that the conviction was very serious as it demonstrated a sexual interest in children, calling into question Mr Pang's suitability to be entrusted with the care of others. The fact the relevant events occurred outside Mr Pang's work did not change that finding.
5. We gave considerable weight to the following which is taken from the Code of Professional Conduct for Nurses applicable at the relevant time:

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 nurse 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.[8]

1. As to allegation 3, we were also satisfied the conduct amounted to professional misconduct within paragraph (c) of the definition as it also was inconsistent with Mr Pang being a fit and proper person to hold registration in the nursing profession.
2. It was of particular concern to us that Mr Pang appeared to have moved from viewing child pornography to making it. Adopting the words the Queensland Civil and Administrative Tribunal used in Nursing & Midwifery Board of Australia v Brearley, (also a case involving child pornography), the conduct indicated an escalation in behaviour, with Mr Pang indicating 'a willingness to play a more active part than he had previously played in securing pornographic material'. [9] It was of grave concern to us that Mr Pang's behaviour may have continued to escalate had the child not reported what happened to her father and had he not then made a report to police.
3. Allegation 2 concerned Mr Pang's failure to notify the Board of the charges which led to the conviction referred to in Allegation 1. Section 130(1) of the National Law requires practitioners to notify the relevant registration board in writing of a 'relevant event' within seven days of becoming aware of that event. The term 'relevant event' is defined to include being charged with an offence punishable by 12 months imprisonment or more and conviction of an offence punishable by imprisonment.[10]
4. There was no dispute that Mr Pang was obliged to notify the Board of the charges once he had been summonsed and notified of the first mention date before the Magistrates' Court.
5. Mr Pang's counsel confirmed that Mr Pang did not notify the Board about the conviction because he understood from the Magistrates' Court proceedings that the Court would arrange for relevant authorities to be informed. We were told Mr Pang's Working with Children assessment notice was cancelled, apparently after notice of the conviction was sent to the Department of Justice.
6. While noting those matters, as is apparent from section 130 of the National Law, the first in time relevant event was the charges being laid, not just the conviction.
7. It is clear from its terms that section 130 was designed to ensure that the Board can promptly take action when events occur which may endanger public safety and the reputation of the profession. Mr Pang's failure to notify the Board meant it was unable to undertake its protective functions. As indicated by the agreed facts, the Board was only aware of the conviction because of the notification made by the dental clinic staff member.
8. The Code of Professional Conduct for Nurses requires that nurses practise and conduct themselves in accordance with the law relevant to the profession and practice of nursing.[11]
9. We found the conduct described in allegation 2 amounted to unprofessional conduct as defined in the National Law. Mr Pang's failure to make himself aware of his responsibilities as a registered health professional was unprofessional, as was his failure to comply. That conduct was of a serious nature and was clearly substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. Given Mr Pang's registration lapsed on 7 July 2016, those determinations under the National Law which address a practitioner's registration are not available to us.
2. As stated earlier, the parties agreed and we accepted the Tribunal had the power to impose a reprimand and a period during which Mr Pang was disqualified from applying for registration.[12]
3. It is well understood that a reprimand is not a trivial determination. For a professional person it has the potential for serious adverse implications.[13] It tells the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.
4. We had no difficulty being satisfied it was appropriate to reprimand Mr Pang for his conduct under section 196(2)(a) of the National Law and so ordered.
5. We were satisfied that it was appropriate to disqualify Mr Pang from applying for registration and that the nominated period be substantial.
6. As we did not hear from Mr Pang directly, we could not make findings about the degree to which he understands and has insight into his conduct. Having said that, we noted he pleaded guilty at the Magistrates' Court and we accepted that he cooperated with the Board's investigation. We gave weight to the fact Mr Pang agreed to the findings set out above and the proposed determinations - that ensured there was no need for the child, her parents or others to come before the Tribunal to give what would necessarily be distressing evidence. We made our determinations taking into account specific deterrence and general deterrence.
7. The criminal sanctions against Mr Pang, including his name being included on the sex offenders register, are indicative of how the Parliament views conduct of this kind.
8. The conduct had the potential to significantly damage the reputation of nursing which calls for nurses to often provide personal and intimate care at times when patients, whether children or adults, are most vulnerable.
9. We asked the parties to explain how they had reached the four-year period. We were referred to two comparable decisions.
10. The first was Brearley which was mentioned above. In that case, in March 2011 the practitioner was convicted (after pleading guilty) to 19 charges of using the internet to access child pornography, one charge of possessing child pornography and one charge of an offence known as 'up skirting'. The latter offence was committed at work and concerned his attempt to photograph a female nurse colleague while they were both on duty. Mr Brearley was sentenced to imprisonment, with the longest jail term being two years. He was released after five months and placed on two years' probation. At the time of the proceeding before the Queensland Civil and Administrative Tribunal in July 2012, he was still on probation.
11. The Tribunal reprimanded Mr Brearley and prohibited him from applying for registration for three years from the date of the order, that is until 19 July 2015. Mr Brearley's registration had lapsed in July 2011.
12. The second case was Nursing and Midwifery Board v Omant.[14] In that case, in November 2010, Mr Omant was charged with three offences relating to the use of a carriage service to access child pornography and knowingly possessing child pornography material. Mr Omant pleaded guilty to all three offences and on 27 May 2011 was sentenced to a total effective sentence of eighteen months, suspended for a period of two years. The suspended sentence expired on 26 May 2013
13. The Board became aware of the charges soon after the charges were laid and, on 13 December 2010, imposed a condition on Mr Omant's registration that he could not practise nursing until the conclusion of the criminal and Board investigations, and any subsequent hearings, into his conduct and health.
14. On 12 October 2015, this Tribunal made final orders reprimanding Mr Omant and making his registration subject to a range of conditions. Those were designed to address his sexual offending and also to address his past problems with alcohol which was a factor in his offending. By the time the Tribunal imposed those conditions, in effect, Mr Omant had been suspended for nearly five years. The Tribunal took that period into account when making its decision not to impose a further period of suspension or to cancel his registration.[15]
15. When considering whether to accept the proposed disqualification period in this case, we had regard to the fact that, as at the hearing date, it had been:
    • Three and half years since the event involving the child;
    • A little over three years since Mr Pang had committed the child pornography offences which led to the conviction;
    • Around two and a half years since Mr Pang had been convicted; and
    • Two years since Mr Pang had been registered as a nurse.
16. We accepted that a period of four years disqualification was appropriate having regard to the decisions in Brearley and Omant. We also took into account the fact that, when added to the two-year period Mr Pang had not been registered before the hearing, in total he would not be able to be registered to work as a nurse for at least six years. We described this analysis to the parties at the hearing and they took no issue with it.
17. As set out earlier, we were satisfied that the total period sent a clear message to Mr Pang about his conduct and would serve as a deterrent to other nurses that conduct of that kind would risk them being prohibited from practising in their profession for a considerable period.
18. We explained above the process should Mr Pang apply to be registered by the Board after July 2022. We confirm it is not the Tribunal's role to anticipate what might happen in four years or seek to direct the Board as to what decision it might make if Mr Pang applies for registration.

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

[2] Section 196(4)(a) of the National Law.

[3] Paragraphs 8 to 11 of submissions dated 12 July 2018.

[4] Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408 at paragraph 6 as confirmed in Medical Board of Australia v Willcourt (Review and Regulation) [2018] VCAT 1032 at paragraph 13.

[5] [2015] HCA 46.

[7] [2014 HCA 2.

[8] Code of Professional Conduct for Nurses in force from 7 May 2013, page 4, Conduct Statement 9.

[9] [2012] QCAT 323 at paragraph 8.

[10] Section 130(3)(a) and (b) of the National Law.

[12] Section 196(4)(a) of the National Law.

1. [13] Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, 19 January 1993 at p 6.

[14] [2015] VCAT 1529.