1. The Tribunal finds that, in respect of the matters alleged in paragraph 3.1(1)(a)-(h) inclusive in the Amended Referral dated 21 June 2012, Morimer Kham has engaged in professional misconduct.
2. The Tribunal finds that, in respect of the matters alleged in paragraph 3.1(2)(a) and (b)(i)-(ix) of the Amended Referral dated 21 June 2012:
   • (a) insofar as the alleged matters occurred between 16 January 2007 and 30 June 2007, Morimer Kham has engaged in unprofessional conduct, and the unprofessional conduct was of a serious nature, and includes unprofessional conduct amounting to professional misconduct; and
   • (b) insofar as the alleged matters occurred between 1 July 2007 and on or about 20 August 2007, Morimer Kham has engaged in professional misconduct.
3. As a consequence of the findings under Orders 1 and 2, the Tribunal determines that:
   • (a) Morimer Kham is reprimanded;
   • (b) Morimer Kham's registration as a pharmacist is cancelled; and
   • (c) Morimer Kham may not re-apply for registration as a pharmacist before 1 September 2013.
4. In the event that Morimer Kham re-applies for registration as a pharmacist, the Tribunal recommends to the Pharmacy Board of Australia (or other relevant registration body) that:
   • (a) Mr Kham be required, as part of his application for registration and at his expense, to undergo an independent psychiatric or psychological assessment by a practitioner nominated by the Board to satisfy the Board that there is no impairment to Mr Kham's capacity and fitness to practice;
   • (b) any registration, if granted, should contain a restriction on Mr Kham's practice for a minimum period of at least one year, that requires Mr Kham to practise only in a supervised capacity in the presence of another pharmacist, and without direct access to any controlled drugs; and
   • (c) any registration, if granted, should require Mr Kham to undertake continuing professional development in the field of ethics and/or responsible practice management.
5. Morimer Kham must, within 30 days of the date of this order, make a contribution of $1,795 to the Pharmacy Board of Australia's reserved costs of the day in relation to the adjourned hearing scheduled on 10 February 2012.
6. (per Deputy President Dwyer, as presiding member)

Pursuant to s101(3)(c) and s 146 of the Victorian Civil and Administrative Tribunal Act 1998), unless the Tribunal or a Court orders otherwise:

(a) a person must not publish or broadcast or cause to be published or broadcast any material or information that is given or produced to the Tribunal in this proceeding that identifies, or could reasonably lead to the identification of, the original notifier/complainant to the Department of Human Services.

(b) no person, other than the parties and their legal representatives, may inspect the Tribunal's file (including the Tribunal Books filed by the parties).

Dr Sharon Keeling of counsel, instructed by O'Donnell Salzano Lawyers.

Mr Andrew Halse of counsel, instructed by McNamaras Solicitors. Mr Halse called the following witnesses:

• Jeffrey Cummins, psychologist
• Chandra Kham
• Cheav Taing
• Russell Lill

1. The Pharmacy Board of Australia (the Board) has referred allegations relating to the professional conduct of a registered pharmacist Morimer Kham to the Tribunal for a hearing.
2. The particulars of the alleged conduct are set out in an Amended Referral dated 21 June 2012 (a document in substantially similar form to the original Referral dated 17 August 2011) from the Board's solicitors. There are two primary allegations.
3. First, it is alleged that, between 28 July 2007 and on or about 20 August 2007, Mr Kham trafficked on a number of separate occasions in pseudoephedrine, a drug of dependence, in breach of the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act).
4. On 18 December 2008, Mr Kham was convicted in the Magistrates Court for offences arising from the same facts and circumstances.
5. Secondly, it is alleged that, between on or about 16 January 2007 and on or about 20 August 2008:
   • on a number of separate occasions, Mr Kham supplied without an original prescription various quantities of oxycodone (a Schedule 8 poison under the Drugs, Poisons and Controlled Substances Regulations 2006 (DPCS Regulations);
   • on a number of separate occasions, Mr Kham supplied to persons without an original prescription various quantities of alprazolam, clonazepam, zolpidem, testosterone and nandrolone (being Schedule 4 poisons under the DPCS Regulations);
   • in relation to the oxycodone, Mr Kham failed to record the receipt from suppliers, failed to record transactions for its supply, failed to keep records showing the balance in his possession, and knowingly made false and misleading entries in records, all in breach of the DPCS Regulations;
   • Mr Kham altered a previously dispensed prescription in an attempt to make it appear to correspond with an occasion when he had supplied oxycodone without a prescription;
   • in relation to the Schedule 4 poisons, Mr Kham failed to record transactions for their supply, in breach of the DPCS Regulations; and
   • Mr Kham failed to report lost or stolen poisons to the Victoria Police or the Secretary to the Department of Health immediately upon becoming aware of the loss or theft, in breach of the DPCS Regulations.
6. On 27 October 2010, Mr Kham was convicted in the Magistrates Court on 21 charges arising from the same facts and circumstances.
7. In an Agreed Statement of Facts dated 1 February 2012 and filed in this proceeding, Mr Kham (through his lawyer) has admitted the facts giving rise to both allegations before us, including the proofs contained in the police brief, transcript of interview, and prosecution summary for the Magistrates Court proceedings, and a certified extract of the court order. Mr Kham's counsel has confirmed this agreed statement of the facts.
8. Although the facts are agreed, the parties have not agreed on the findings we should make resulting from those facts - in particular, whether the conduct amounts to professional misconduct, or unprofessional conduct of a less serious nature, under relevant legislation.

1. Having regard to the decision in Dewan v Medical Board of Australia[1], we consider it generally appropriate for there to be two phases to the hearing process in a disciplinary proceeding. The Tribunal's findings should be articulated to the parties prior to their submissions on the question of any appropriate determination, in the event the practitioner is found guilty of misconduct. In particular, the practitioner should not be required to make any submissions or to call any evidence on an appropriate determination before knowing what allegations (if any) are made out, and the statutory characterisation of any misconduct (e.g. 'unprofessional conduct', 'professional misconduct' etc) found to have occurred.
2. We do not believe it will always be necessary to have two separate hearings for this purpose, particularly where the alleged conduct is largely admitted in the first phase of the hearing. Whether the consideration of the determination requires a separate second hearing, or can be dealt with in a second phase of a single hearing, will depend on the facts and circumstances of each case, and considerations of procedural fairness - particularly to the practitioner.
3. Here, Mr Kham's counsel sought that the two phases of hearing occur within the one hearing, albeit spread over three hearing days. At the conclusion of the evidence and submissions in relation to our findings, we gave an oral decision setting our primary findings and a short form summary of our reasons for those findings (which are elaborated upon in these written reasons, as a matter of record). We then resumed after a break to hear evidence and submissions relevant to determination. In the circumstances, we consider this to be an efficient use of the Tribunal's resources rather than requiring the costs and delay of a further hearing. However, had Mr Kham requested that the second phase be adjourned to a separate further hearing, we would have acceded to that request.

1. Part of the alleged conduct arose in the period prior to 1 July 2007 when the Pharmacy Practice Act 2004 applied to the conduct of a pharmacist. The balance of the conduct arose in the period prior to 1 July 2010, when the Health Professions Registration Act 2005 applied. The hearing was conducted, and our findings are made, under the transitional provisions of the governing legislation now in force - i.e. the Health Practitioner Regulation National Law (Victoria) Act 2009, having regard (where relevant) to the governing legislation in force at the relevant time. There was no dispute between the parties on this issue. These same transitional provisions will apply to our determination in due course.

1. Given the Agreed Statement of Facts, we make a formal finding that the facts supporting the two allegations against Mr Kham, as set out in that statement and the supporting documents, are proven. We turn therefore to the contested issue of our more specific findings under the relevant legislation.

1. In respect of the matters alleged in paragraph 3.1(1)(a)-(h) inclusive in the Amended Referral dated 21 June 2012, the Board submits that we should find that Mr Kham has engaged in professional misconduct, as defined in paragraph (a) and/or (b) and/or (c) of the definition of 'professional misconduct' in s 3(1) of the Health Professions Registration Act 2005.
2. Relevantly, the definition of 'professional misconduct' in s 3(1) of the Health Professions Registration Act 2005 in force at the relevant time was as follows:

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession.

1. We find that professional misconduct is clearly established under sub-paragraphs (a) and (b) of the definition, on the basis of the matters in the Agreed Statement of Facts considered alone. On any view, the unlawful trafficking in pseudoephedrine (a precursor to the manufacture of amphetamines) on a number of separate occasions by Mr Kham represents a very substantial, serious and consistent failure to maintain the reasonable standards expected of a pharmacist. It also falls substantially short of the standard of professional conduct observed by members of the pharmacy profession of good repute or competency. It seriously undermines the integrity of the trust and authority vested in a pharmacist to control the unlawful supply of restricted drugs of dependence, and shows a disregard for the health and well-being of those who may be affected by the use or misuse of those drugs.
2. Of particular concern here, in considering the severity of Mr Kham's misconduct, is his apparent willingness to supply increasing quantities over a relatively short space of time. This was not an isolated incident. The Agreed Statement of Facts shows that, on 28 July 2008, Mr Kham supplied 3 boxes, each containing 720 mg of pseudoephedrine hydrochloride. In successive events through to 20 August 2008 involving undercover police, he supplied 3, 5, 11, 16, 30, then 40 boxes of pseudoephedrine, ultimately supplying 112 boxes for which he received a total of $1900.70.
3. We consider, below, the issue of whether Mr Kham's alleged impaired mental functioning affects this finding. Although we have dealt with that issue separately, for convenience, it has been considered by us holistically in making our overall finding of professional misconduct.

1. In respect of the matters alleged in Allegation 3.1(2)(a) and (b)(i)-(ix) of the Amended Referral dated 21 June 2012, the Board submits that:
   • insofar as the alleged matters occurred between 16 January 2007 and 30 June 2007, Mr Kham has engaged in unprofessional conduct of a serious nature for the purpose of s 69(1)(a) of the Pharmacy Practice Act 2004, as defined in paragraphs (a) and/or (b) and/or (c) and/or (e) of the definition of 'unprofessional conduct' in s 3(1) of that Act; and
   • insofar as the alleged matters occurred between 1 July 2007 and on or about 20 August 2007, Mr Kham has engaged in professional misconduct, as defined in paragraph (a) and/or (b) and/or (c) of the definition of 'professional misconduct' in s 3(1) of the Health Professions Registration Act 2005.
2. Relevantly, the definition of 'unprofessional conduct' in s 3(1) of the Pharmacy Practice Act 2004 in force at the relevant time prior to 1 July 2007 was as follows:

"unprofessional conduct" means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered pharmacist; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered pharmacist by his or her peers; or

(e) providing a person with pharmacy services of a kind that are excessive, unnecessary or not reasonably required for that person's well-being; or

1. 'Professional misconduct' under sub-paragraph (c) is not separately defined for the purpose of this definition in the Pharmacy Practice Act 2004. It is simply a subset of unprofessional conduct, as defined. In this regard, we have considered 'professional misconduct' in the context of its traditional common law characterisation arising in cases such as Adamson v Queensland Law Society Inc[2] and Campbell v Dental Board of Victoria[3].
2. We note that the Board does not rely on the definition of unprofessional conduct under s 3(1)(i), being a finding of guilt for an offence under a relevant Act or Regulation (which would here include the DPCS Regulations). Given the admissions in the Agreed Statement of Facts, the Board relies directly on those primary admitted facts as disclosing the misconduct.
3. For the record, we note that, if we find that the practitioner has engaged in unprofessional conduct, we are required under s 69(1) of the Pharmacy Practice Act 2004 to make a finding whether that unprofessional conduct was of a serious nature or not. This finding is relevant to the range of available determinations under that Act.
4. For the conduct before 1 July 2007, we find that unprofessional conduct is clearly established under each of sub-paragraphs (a), (b), (c) and (e) of the definition in the Pharmacy Practice Act 2004 on the basis of the matters in the Agreed Statement of Facts considered alone. We find that the unprofessional conduct was of a serious nature, and includes unprofessional conduct amounting to professional misconduct under sub-paragraph (c) of the definition.
5. For the conduct after 1 July 2007, we have already set out the relevant definition of professional misconduct under the Health Professions Registration Act 2005. For this conduct, we also find that professional misconduct is clearly established under sub-paragraphs (a) and (b) of the definition in that Act, on the basis of the matters in the Agreed Statement of Facts considered alone.
6. Again, on any view, the unlawful supply, without original prescription, of scheduled drugs and poisons under the DPCS Regulations in significant quantities on a number of separate occasions by Mr Kham represents a very substantial, serious and consistent failure to maintain the reasonable standards expected of a pharmacist (under the Health Professions Registration Act 2005), or the standard which the public might reasonably expect of a registered pharmacist (under the Pharmacy Practice Act 2004). It also falls substantially short of the standard of professional conduct observed by members of the pharmacy profession of good repute or competency (under the Health Professions Registration Act 2005), or the standard which might reasonably be expected of a registered pharmacist by his or her peers (under the Pharmacy Practice Act 2004).
7. The quantities unlawfully supplied are significant - for example, 10,800 tablets of alprazolam, 8,800 tablets of clonazepam, and 186 injections of testosterone. Of particular concern, the Agreed Statement of Facts also concedes the falsification of some records and transactions in an endeavour to conceal the wrongdoing.
8. The misconduct again seriously undermines the integrity of the trust and authority vested in a pharmacist to control the supply of restricted and scheduled drugs and poisons, and to maintain proper records of all transactions involving scheduled drugs and poisons. It again shows a disregard for the health and well-being of those who may be affected by the use or misuse of those drugs.
9. As we have earlier indicated, we consider below the issue of whether Mr Kham's alleged impaired mental functioning affects this finding.

1. Given the similarities in the conduct in the two allegations, apart from our primary findings above, we have considered the professional misconduct arising from the allegations together in the balance of these reasons.
2. As we have indicated, we have found Mr Kham has engaged in professional misconduct on the basis of the matters in the Agreed Statement of Facts, considered alone.
3. Mr Kham had contested the severity of the findings we might make, suggesting a lesser finding of unprofessional conduct of a non-serious nature was more appropriate. The Board therefore presented us with substantive additional material beyond the Agreed Statement of Facts, albeit that some of this material was perhaps unnecessary given the misconduct clearly disclosed in the Agreed Statement of Facts and the convictions in the two court proceedings arising from the same facts and circumstances.
4. We do not consider it necessary to detail that further material in these reasons, as it is summarised in the extensive written submissions provided to us by the Board[4]. It is sufficient to note that this additional material bolsters the finding we have already reached, by revealing substantive inconsistencies in Mr Kham's version of some of the events or his explanation for them (as compared with other available material, including contemporaneous medical records). In referring to Mr Kham's 'version' or 'explanation', we note for the record that Mr Kham did not given evidence before us and we have relied in this regard on material in the Tribunal Book (e.g. police statements) and relevant parts of the evidence of his sister Chandra Kham and his psychologist Jeffrey Cummins.
5. The key issue for our consideration is whether a finding of professional misconduct is appropriate, given some evidence presented on behalf of Mr Kham, indicating that he may have been suffering from impaired mental functioning at the time the offences were committed. This manifested itself in two ways:
   • it was contended that Mr Kham was under severe duress at the time of committing the offences, as a result of trauma from regular threats and armed robberies at his pharmacy; and
   • it was contended that Mr Kham had a psychological or mental health condition, or severe depression, arising from his estranged relationship with his dominant and overbearing father (now deceased) who owned and also worked in the pharmacy where the offences occurred.
6. At a threshold level, we consider that evidence of impaired mental functioning will more commonly be relevant to the Tribunal's determination (e.g. as a mitigating factor to the sanctions that might be imposed) rather than in relation to the Tribunal's primary findings. Indeed, Mr Kham's counsel conceded that he did not seek to contend that Mr Kham's impairment exculpated him completely for his actions. Nonetheless, he relied upon evidence from the psychologist Mr Jeffrey Cummins that Mr Kham's impairment reduced the severity of his wrongdoing or his moral culpability.
7. In his report filed in the proceeding, Mr Cummins had noted Mr Kham's turbulent and conflict-ridden relationship with his father. He also noted that Mr Kham's pharmacy operated a needle exchange and methadone program, and Mr Kham's difficulties arose in his dealings with drug-using customers, and it was these customers who threatened him and were the perpetrators of armed robberies. Mr Cummins then added:

In my opinion he has been genuinely traumatised by his relationship with his father. In my opinion he was genuinely the victim of duress and repeated traumas whilst working at the Silverton Pharmacy and in my opinion his mental health was then chronically compromised and it was against this background that he committed the offences for which he has appeared at court. In my opinion at the time of offending and indeed for the time he was working at the Silverton Pharmacy he was suffering from a chronic Adjustment Disorder with Mixed Disturbance of Emotions (anxiety and depression, fear and confusion) and Conduct (DSM IV-TR Code 309.40.

1. Mr Kham's counsel referred us to the decision in R v Verdins[5], where the Court of Appeal indicated (in a criminal law context) that impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of[6]:
   • (a) impairing the offender's ability to exercise appropriate judgement;
   • (b) impairing the offender's ability to make calm and rational choices, or to think clearly;
   • (c) making the offender disinhibited;
   • (d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
   • (e) obscuring the intent to commit the offence; or
   • (f) contributing (causally) to the commission of the offence.
2. From our reading of this case, it appears that these factors were considered by the Court in R v Verdins primarily in the context of the sentencing discretion - i.e. here, analogous to our determination, rather than in relation to the primary finding of guilt. Mr Kham's counsel nonetheless contended that some of the factors identified in _R v Verdin_s could also mitigate the severity of the conduct itself, to the extent of supporting a finding of unprofessional conduct of a non-serious nature.
3. As a general proposition, we consider that the impairment of a health practitioner's mental functioning could sometimes be relevant to a finding as to the seriousness of the conduct (given the range of possible findings open to us under the governing legislation) as well as to the blameworthiness of the conduct (given the range of available determinations). However, we do not need to decide here whether that contention is correct. Even if that be so, we are not satisfied on the evidence and submissions before us that any impairment to Mr Kham's mental functioning existed to a level that reduced his moral culpability to the extent of rendering our primary finding as one of unprofessional conduct of a non-serious nature, rather than professional misconduct. At most, in the circumstances of this case, consistently with the analogy we draw fro R v Verdins, we consider it a matter relevant to our determination.
4. In particular, insofar as these matters could be relevant to our primary finding:
   • we consider Mr Cummins opinion to be based largely on the history and version of events described to him by Mr Kham, and thus potentially based on a false or incomplete set of assumptions;
   • we do not find on the evidence before us that Mr Kham was under severe duress at the time of each incident of supplying drugs without prescription. Indeed, we accept the Board's evidence that many of these incidents were voluntary commercial transactions for Mr Kham's financial advantage, not involving persons known by Mr Kham to be drug users or involving threatening behaviour, and without any evidence of duress. For example, the increasing amounts of pseudoephedrine supplied to undercover police;
   • although there is an assertion of several on-going threats and armed robberies, there is only evidence of one reported armed robbery. The inconsistent accounts given for other purported threats or robberies (or excuses for them not being reported) are at best of dubious veracity[7];
   • from the other medical records produced under subpoena, the evidence is that Mr Kham's depression likely arose (or became more severe) after the offences were committed[8], and that his relationship with his father was mixed, and not as overbearing as reflected in Mr Cummins report or the evidence of Mr Kham's sister[9];
   • even if Mr Kham was suffering from some mental impairment, the evidence of Mr Cummins is that Mr Kham still knew the difference between right and wrong, and he still knew that he was committing an offence. The number of events over a period of time, and the volume of drugs unlawfully dispensed, indicate to us that his level of moral culpability was not diminished, and certainly not in a manner that reduces the severity of our finding from one of professional misconduct.
5. Indeed, even if Mr Kham's condition was so severe as alleged, so as to in some way partially excuse the seriousness of his actions, it would raise doubt in our mind as to whether Mr Kham was at the time a 'fit and proper person' to practice - itself a potential basis for an adverse finding against him.
6. Mr Kham chose not to give evidence on his own behalf, as is his right. The Board urged that we draw adverse inferences from this, based on the principle in Jones v Dunkel, in relation to any findings we might need to make arising from unexplained events. Given we have made our finding of professional misconduct primarily on the basis of the Agreed Statement of Facts alone, we do not consider we need to draw any such inferences, helpful though direct evidence of Mr Kham's explanations for his actions may have been. We are satisfied that the Board has sufficiently made out a case for our findings of professional misconduct, on the balance of probabilities, based on the Agreed Statement of Facts and the material provided to us in the Tribunal Book.

1. As we have noted earlier, we gave short form oral reasons at the end of the first phase of hearing, generally to the above effect, before hearing submissions on determination. We now turn to that issue.
2. Given much of the serious misconduct arose after 1 July 2007, when the Health Professions Regulation Act 2005 applied, we find it sufficient to deal with our determination under that Act - whilst noting that the determination we have reached is also consistent with our finding and the options available to us under the Pharmacy Practice Act 2004 for the professional misconduct that arose prior to 1 July 2007.
3. Section 77(4) of the Health Professions Regulation Act 2005 sets out the options available to the Tribunal by way of determination. The determinations include a requirement that the pharmacist undergo counselling, a caution or reprimand, a fine, suspension or cancellation of the pharmacist's registration, or further education or the imposing of a condition or restriction on the pharmacist's registration. The Tribunal can make one or more of these determinations.
4. As has been noted by the Tribunal in other disciplinary cases, a similar range of available determinations applies for both 'unprofessional conduct' and 'professional misconduct'. In Morris v Psychologists Registration Board[10], the Supreme Court rejected an argument that the gravest disposition (i.e. cancellation of registration) should be reserved only for the most serious form of conduct, and stated that the most appropriate determination must be a matter of discretion depending on all the circumstances. Whilst each matter turns on its own facts and circumstances, common sense and common practice would suggest that, save for any mitigating factors, more serious misconduct or a more serious breach of professional standards would more commonly lead to a more serious determination.
5. We consider that the unlawful dispensing of large quantities of drugs, in numerous separate events involving different recipients, and over a period of time, represents a more serious level of misconduct that would ordinarily attract a severe sanction such as suspension or cancellation. Equally, in the context of mitigating factors, we accept that clear and compelling evidence of an impairment to Mr Kham's mental functioning at the time the offences were committed could represent a potential mitigating factor that could reduce the sanction we might otherwise impose.
6. The usual principles applicable to determinations for disciplinary offences have been variously described in the case law, and are generally considered to include the following:
   • (a) the protection of the public;
   • (b) the maintenance of professional standards in the eyes of the public;
   • (c) a weighing of the public interest in the practitioner continuing to practise against the public interest in protecting clients from any repetition of the conduct exhibited;
   • (d) evidence of insight and/or remorse, where relevant;
   • (e) the role of general and specific deterrence.

As has been noted in other disciplinary proceedings, the first two principles are commonly regarded as being of primary importance. Some of these principles may overlap, and there may be relevant mitigating factors to consider.

1. We agree with the Board that we should also consider (as relevant) the nature and gravity of the misconduct, the extent of departure from any required standard, the practitioner's past discipline history, and whether the practitioner has made admissions[11]. A degree of parity in determinations for like matters is desirable, and we have had regard to some of the cases supplied by the Board (including cases from other jurisdictions). However, the most appropriate determination is ultimately a matter of discretion for the Tribunal, after considering the principles holistically, and in the particular circumstances of the case before it.
2. The Tribunal has consistently stated, and the appellate courts have consistently held, that the purpose of disciplinary proceedings is primarily to protect the public, and not to punish the practitioner[12]. Given that our determination is not punitive, we do not consider it of great relevance that Mr Kham has already been 'punished' through the court proceedings. Similarly, although the Board submitted that our determination should include a fine, we do not consider that it is warranted here.
3. Following the commencement of the court proceedings, Mr Kham voluntarily suspended his registration for 6 months. Given that the disciplinary proceedings were deferred until after the court proceedings, as is commonly desirable, the effect has been a 4 year delay in having these matters determined by the Tribunal. We have taken this into account, but note that, by agreement with the Board and apart from the period of voluntary suspension, Mr Kham has been allowed to continue to practise in a conditional supervised capacity (without direct access to any controlled drug cabinet) pending the outcome of the disciplinary proceedings. Some of the 'delay' in having the Tribunal proceedings finalised has also been caused by Mr Kham and his advisers, through the late filing of Mr Cummins report that necessitated an adjournment of an earlier scheduled hearing.
4. Since October 2011, Mr Kham has been employed in a supervised role at a pharmacy in Clayton South. The proprietor and pharmacist Mr Taing gave evidence that Mr Kham's role involved a high level of responsibility, and that he would be happy to continue to employ Mr Kham. However, under cross-examination, it became apparent that Mr Taing was not fully appraised of all of the facts and circumstances concerning the offences. He had described Mr Kham's 'predicament' with the Board, but indicated he hadn't inquired too much about it provided Mr Kham maintained a conditional registration, and he thought Mr Kham had some issues with record keeping, and some lost or stolen medications. Mr Taing appeared largely unaware of the supply of narcotics without a prescription, or the volumes supplied. It is certainly not clear to us that Mr Kham has been completely honest in the way he has represented his misconduct to Mr Taing.
5. Nonetheless, fact that Mr Kham has been capable of working in a supervised role with a conditional registration presents us with somewhat of a choice. Does it provide some basis for a determination be that Mr Kham ought to be allowed to continue in that role and/or return to an unconditional registration in the short to medium term? Or do the circumstances that underscore our findings of professional misconduct still warrant a period of suspension or cancellation of his registration? We note that Mr Cummins evidence is that Mr Kham's continuing work as a pharmacist (albeit under supervision) has been important to his rehabilitation. Ultimately, however, the choice we must make requires us to return to the 'usual' principles we outlined earlier - in particular the protective element of our determination, and the maintenance of professional standards in the eyes of the public.
6. It is relevant here that Mr Kham has admitted his wrongdoing through the Agreed Statement of Facts. However, whilst Mr Kham is not required to give evidence on his own behalf, the absence of positive evidence from him on important matters such as his level of remorse and insight is problematic, and gives us little opportunity for reasonable insight into his behaviour and how he might undertake the practice of a pharmacist in the future. We do not consider the very limited character evidence of Mr Taing, with reference to Mr Kham's current supervised practice, to provide a sufficient or compelling basis for assessing how Mr Kham might practise as a pharmacist in the future.
7. Unfortunately, it is not unusual for a pharmacist to be placed under 'pressure' from customers from time to time to supply drugs without a prescription, or even to be made subject to implied or actual threats to do so. That pressure may be more likely to occur in pharmacies in certain locations, or in pharmacies that have a needle exchange or methadone program, but it is not limited to these areas or pharmacies. We have no evidence before us to indicate how Mr Kham might deal with such a situation in the future, or to give us comfort that he would capable of resisting those pressures. We therefore have little to assist us in how we might weigh the public interest in allowing Mr Kham to continue to practise against the public interest in protecting the public from any possible repetition of the conduct exhibited. We do not consider the 'second-hand' remorse communicated through Mr Cummins, Ms Kham or Mr Gill to be sufficient or compelling.
8. In this regard, we have also carefully reviewed and re-considered the report and evidence of the psychologist Mr Cummins. We have previously indicated that we consider Mr Cummins' opinion to be based largely on the history and version of events described to him by Mr Kham, and thus potentially based on a false or incomplete set of assumptions. Mr Cummins conceded he did not fully test the veracity of what he was told, other than considering its underlying plausibility. Despite some 22 consultations, he considered he was still partly in the assessment phase of understanding Mr Kham's underlying psychological condition (a matter we find surprising and unsettling), and only partly in a treatment phase. He considered Mr Kham still very much a 'work in progress'. Mr Cummins could not point to any specific treatment regime, other than continuing supportive psycho-therapy and cognitive behavioural therapy, although neither were detailed in his clinical notes (a matter we also find surprising and unsettling). Although indicating a low risk of re-offending, Mr Cummins also indicated under cross-examination that Mr Kham's personality suggested a high risk that he could be placed in a similar position of re-victimisation to that he experienced with his late father, and that he did not enjoy a broad support network. Mr Cummins also noted Mr Kham's estranged relationship with his wife - a matter about which there is conflicting evidence in other medical records[13]. There was no real attempt by Mr Kham's counsel to explain the many inconsistencies in the material before us.
9. Given our misgivings with Mr Cummins' evidence, we remain unconvinced that there was a sufficient impairment to Mr Kham's mental functioning at the time the offences were committed that reduces his moral culpability or provides sufficient mitigation to reduce the sanction we might otherwise impose. We reiterate the matters set out earlier in these reasons[14], and we consider those matters apply also to our determination. In particular, the number of events over a period of time, the volume of drugs unlawfully dispensed, and the inconsistent explanations or excuses for this conduct, all indicate to us that Mr Kham's level of moral culpability was not materially diminished over this period. Even Mr Cummins' evidence is that Mr Kham well knew that what he was doing was wrong.
10. The evidence supports there having been some threats at the pharmacy in the period prior to January 2008, and an armed robbery at the pharmacy in April 2008. Statements made by Mr Kham (and included in the Tribunal Book) indicate many other events he claimed were reported to police, although no evidence was produced to support this, and his later statements to police and medical advisers are inconsistent on these issues. Moreover:
    • some of the misconduct arose well prior to January 2008 - at least in January 2007 within the allegations conceded in the Agreed Statement of Facts, and perhaps as early as March 2006;
    • whilst it is at least conceivable that the armed robbery in April 2008 could have trigged post-trauma symptoms that explain Mr Kham's conduct in the following period (and particularly the misconduct in August 2008 that the psychologist Ms Lechner ascribed to a post-traumatic stress disorder[15]), this is not consistent with the earlier misconduct (of which it appears Ms Lechner was unaware). Ms Lechner was not called to give evidence. We also treat this material with caution given other medical records produced by the Board, and the number of events that constitute the misconduct over time.
    • there is evidence that Mr Kham's father decided in January 2008 to stop stocking alprazolam tablets because of past threats and he informed Mr Kham of this, but between February and August 2008 the pharmacy purchased 6,600 alprazolam tablets[16], some of which formed part of the 10,800 alprazolam tablets unlawfully supplied by Mr Kham. Mr Kham's conduct is inconsistent with duress from his father (who it appears was trying to remove the basis for any continuing threats) or duress from customers.
11. Even if we were to accept Mr Cummins' opinion of some chronic loss of judgement predicated by a psychological disorder that reduced his culpability for the offences, we would draw no comfort from the balance of Mr Cummins' evidence that would satisfy us that the public would be sufficiently protected by allowing Mr Kham to continue work as a pharmacist, even under a conditional registration, in the immediate future. We consider the proposal by Mr Kham's counsel for an immediate return to practice, with a one-year condition for a supervised practice arrangement to be arbitrary and inadequate. We consider that the protection of the public and the maintenance of professional standards in the eyes of the public warrant a higher level determination through suspension or cancellation of Mr Kham's registration. Given the seriousness of the offences, we do not see our role in the protection of the public as simply taking him 'on trust'.
12. In terms of the maintenance of professional standards in the eyes of the public, no formal material was tendered before us. However, the Tribunal constituted for this proceeding includes two pharmacists well experienced in such standards as they pertain to the pharmacy profession. From this, we note that the profession has been on alert about the potential abuse of pseudoephedrine since at least 2006, with a "Code of Practice - Pseudoephedrine" endorsed by the Pharmaceutical Society of Australia and applying since November 2006.
13. Codes of Professional Conduct, Codes of Ethics and Professional Practice Standards have existed in the pharmacy profession for many years, from which we note:
    • Mr Kham has ignored the principle that the primary concern of a pharmacist must be the health and well-being of both clients and the community. In particular, he has not exercised proper professional judgement to prevent the supply of potentially harmful products, particularly those that have potential for abuse and dependency;
    • Mr Kham has not practised in a manner that upholds the reputation of the profession and adherence to the legislation applicable to the pharmacy profession - in particular the Drugs, Poisons and Controlled Substances Act 1981 and the DPCS Regulations. Nor has he acted with honesty and integrity reasonably expected of a pharmacist by the public;
    • Mr Kham has not demonstrated a high standard of professional competence - in particular through his supply of restricted drugs such as pseudoephedrine, as well as scheduled drugs that are the subject of potential misuse without prescriptions (where required), and in substantial quantities, and ignoring his record keeping obligations; and
    • Mr Kham has not acted in an ethical manner in promoting the proper and quality use of medicines, and has put individuals whom he supplied and other members of the public at great risk through the unlawful supply of pseudoephedrine and controlled drugs.
14. The breaches of professional standards by Mr Kham were neither isolated or inadvertent. They are serious and warrant a higher order sanction. The professional standards of a pharmacist demand that a pharmacist resist the occasional pressures from those who may seek access to drugs without prescription. Mr Kham was unable to deal with those pressures and, as we have found, some of the misconduct involved voluntary commercial transactions absent of such pressure.
15. In terms of general and specific deterrence, we also consider a higher-level determination is justified. There needs to be a clear message that this form of professional misconduct, through the unlawful supply of scheduled drugs and poisons in large quantities, is reprehensible and not to be tolerated. As we have said, the misconduct seriously undermines the integrity of the trust and authority vested in a pharmacist to control the supply of restricted and scheduled drugs and poisons, to resist the inherent pressures and threats upon a pharmacist to occasionally supply such drugs, and to maintain proper records of all transactions involving scheduled drugs and poisons.
16. Taking all matters into account, we have come to the view that the cancellation of Mr Kham's registration is warranted. Whilst we have considered the option of suspension, we believe that cancellation is the preferable and correct determination in this case. An order for suspension carries with it an automatic right to recommence practice upon expiry of the period of suspension, and must therefore be based on a view that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise[17]. Here, there is insufficient evidence to give us any comfort that Mr Kham has sufficiently overcome the underlying causes that led to the commission of the offences. Indeed, on the limited evidence before us, we find it difficult to form any view on when Mr Kham may be fit to practise. Given the limits of Mr Taing's evidence, we do not consider his current supervised practice to provide a good guide as to how he might handle the pressures of any future unconditional practice if placed in a similar situation to that which gave rise to the misconduct in this case. Moreover, some medical records suggest his depression may have commenced or worsened, rather than improved, since the time of the offences. The period of any suspension we might impose would therefore be somewhat arbitrary. In any event, given the time since the offences were committed, a longer-term suspension, or the imposing of significant conditions upon his return to practice, would be tantamount to a cancellation of his registration by default.
17. As we have indicated, we are not at all persuaded, on the limited evidence before us, that the underlying causes of the professional misconduct are genuinely understood or have been genuinely addressed, or that Mr Kham yet shows genuine insight into his wrongdoing or its causes - certainly not in a manner that manifests itself in any appreciation of how he might practise effectively and responsibly as a pharmacist in an unsupervised capacity in the future. We consider the evidence of mitigation, that attempts to explain his misconduct as an 'out of character' episode to be relatively weak.
18. On the evidence before us, we consider that the protection of the public and the public interest both warrant a cancellation of Mr Kham's registration, and that he be required to re-apply for registration and satisfy the Board of his fitness to practise at some point in the future. Given the material before us, and the need for Mr Kham to continue treatment, or perhaps seek alternative treatment, we consider it appropriate to impose a period of approximately one year within which Mr Kham is disqualified from reapplying for registration. In the circumstances of this case, the timing of any application for re-registration beyond that time should be determined by sustained and demonstrable progress in his personal development and professional rehabilitation, and his willingness to demonstrate real insight into his wrongdoing, its causes, and how he might return and practice in the future if he so desires. Whether any application for re-registration is just a year away, or some longer period, is a matter for Mr Kham and those counselling and advising him.
19. An application for re-registration in the future will also enable the Board to impose relevant conditions on his re-registration (if any) that may then be appropriate. Mr Kham would have has a right of review if his application for registration is not approved. In circumstances where we are cancelling Mr Kham's registration as a pharmacist, we cannot ourselves impose conditions on his future registration, but we have offered some non-binding recommendations in our order that arise from our deliberations.

1. The Board sought reserved costs arising from the cancelled hearing in February 2012, that was adjourned due to Mr Kham's late filing of the report of Mr Cummins, and the Board's desire to carefully consider it. Although costs are discretionary, and not always awarded in such circumstances, we consider it appropriate that Mr Kham be required to contribute to the Board's costs on this occasion. The Board was disadvantaged by the late filing of the report. To avoid a taxation, and having regard to the County Court Scale often applied in such situations, we have fixed an amount we consider appropriate.

[1] [2011] VSC 588 per Beach J.

[2] [1990] 1 Qd. R 498 (Queensland Full Court)

[3] [1999] VSC 113 per Mandie J.

[4] particularly at pages 4 to 20 inclusive, with cross-references to relevant documents in the Tribunal Book

[5] [2007] VSCA 102 at [26]

[6] The Court noted that this was not an exhaustive list.

[7] e.g. as set out in the Board's written submissions at [9] and following

[8] see for example the Board's written submissions at [45]

[9] Mr Kham told the psychologist Catherine Ly that his relationship with his parents was supportive.

[10] unreported decision of the Supreme Court of Victoria (No. 6208 of 1997), Harper J. (BC9707354 at 24)

[11] see, for example, the Board's written submissions on determination at [7]

[12] e.g. Ha v Pharmacy Board of Victoria [2002] VSC 322 per Gillard J. at [90]-[94]

[13] as set out, for example, in the Board's written submissions at [29]

[15] see, for example, the Board's written submissions at [38]

[16] as set out, for example, in the Board's written submissions at [34] and the footnoted Tribunal Book references.

[17] Medical Practitioners Board v White [2011] VCAT 592 at [52]- [53]