Kovac v Chiropractic and Osteopathy Board of South Australia - [2010] SASC 92

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KOVAC v CHIROPRACTIC AND OSTEOPATHY BOARD OF SOUTH AUSTRALIA
[2010] SASC 92
Judgment of The Honourable Justice Kourakis (ex tempore)
6 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to six counts of holding himself out as a chiropractor whilst not registered and six counts of providing restricted therapy whilst not a qualified person to do so – appellant qualified chiropractor and registered in UK and NSW at time of offending – appellant worked temporarily in SA during a visit from UK in September-October 2007 then took up practice in SA permanently in February 2008 – appellant did not register until April 2008 due to slackness – Magistrate imposed single penalty of $10,000 – whether penalty manifestly excessive – whether Magistrate’s reasons inadequate.
Held: Appeal allowed – penalty was manifestly excessive – single overall penalty of $5,000 appropriate.
Chiropractic and Osteopathic Practice Act 2005 s 27(1)(d), s 34, s 37, s 64, referred to.

KOVAC v CHIROPRACTIC AND OSTEOPATHY BOARD OF SOUTH AUSTRALIA
[2010] SASC 92
Magistrates Appeal: Criminal

KOURAKIS J: This is an appeal against a sentence.
The appellant pleaded guilty to six counts of holding himself out to be a registered Chiropractor contrary to s 34 of the Chiropractic and Osteopathic Practice Act 2005 (the Act) and six counts of performing a restricted therapy contrary to s 37 of the Act. The maximum penalty for each offence is $50,000 or six months imprisonment. The Magistrate imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of $10,000. The appellant by his Notice of Appeal complains that the sentence was manifestly excessive. Without objection from the respondent, the appellant also prosecuted the appeal on the ground that the Magistrate’s reasons were inadequate.
The offences occurred between September 2007 and April 2008. They occurred in the following circumstances. The appellant was trained as a Chiropractor in New South Wales and completed tertiary qualifications in that State in about 1998. Since that time he has practised in New South Wales and in the United Kingdom. At the time of the offences he was registered as a Chiropractor in both jurisdictions. The appellant also held professional liability insurance cover in the United Kingdom which extended to temporary practice in other jurisdictions. The offending in September 2007 occurred whilst he was visiting from England; he worked in a practice in Adelaide’s southern suburbs from 27 September 2007 to early October 2007 before returning to England. The appellant travelled to Australia and again practised contrary to the provisions of the Act from 3 January 2008. His work, which was with the same practice, was initially temporary and spasmodic; however, by 7 February 2008 he took up practice on a permanent basis. The fact that the appellant was not registered came to the attention of the Chiropractic and Osteopathy Board (the Board) in April 2008 and as a result of contact from the Board the appellant became registered as a Chiropractor in this State. The only explanation offered by the appellant for his failure to register was “slackness”. The total registration fee avoided by this slackness was $450.
The respondent contends before me that the offending was at the higher end of the range; the appellant submits that it was at the lower end of the range. In my view the offending was not at the higher end of the range of seriousness. With respect to the offence of holding out, the most serious examples of that offence are those committed by persons who are fraudulently intent upon securing work that they are not lawfully entitled to do, and perhaps not even qualified to do, by misrepresenting that their services are services for which patients might obtain a rebate. The most serious examples of unlawfully providing restricted therapies are those committed by persons who are unqualified to do work such as performing spinal manipulations and who, by doing that work, subject their patients to a high risk of harm.
On the other hand, I also reject the appellant’s submission that the holding out offence is at the lower end of the range. Registration is important for several reasons. First, unless the Chiropractor is registered, patients may not be able to obtain medical benefits. Secondly, by working without being registered, the practitioner avoids the close scrutiny of the Board; scrutiny both as to the way in which the practitioner performs his or her work and of the adequacy of the insurance cover of that practitioner. In those ways, registration provides an important public protection.
I interpolate here that it follows from what I have just said that I regard the insurance status of a person who has practised whilst unregistered as a relevant matter. A registered Chiropractor cannot practise without insurance.[1] It follows that insurance is part of the public protection provided by registration and is a relevant consideration in sentencing for a holding out offence. I return to that question below.
[1] Chiropractic and Osteopathic Practice Act 2005 ss 27(1)(d), 64.
I agree with the submissions of the respondent that it would be wrong to characterise the appellant’s offending as simply not getting around to register as a practitioner. It is accepted that the appellant knew that he had to be separately registered in South Australia notwithstanding his registration in New South Wales. The appellant should therefore not have practised at all unless and until his registration was in place. The appellant’s deliberate flouting of his legal and professional obligation is therefore serious even though it is not the most egregious of breaches.
On the other hand, I do regard these offences of performing restricted therapies as falling at the lower end of the range or very close to it. There is no dispute that the appellant was well qualified. Apart from obtaining his tertiary qualifications in New South Wales, he has worked for about a decade as a Chiropractor. He is therefore an experienced practitioner. References were tendered which showed that he is highly regarded as a Chiropractor. The risk of injury as a result of the performance of this work was therefore very small.
If matters had rested there, there would have been much force in the submission of counsel for the respondent that the penalty was appropriate. It reflects a relatively small proportion of the maximum penalty that was available for any one of the offences. It is not to be thought from the observation that I have just made that for offending of this nature an arithmetical addition of penalties on each of the counts would have been appropriate. There was an underlying identical cause for the offending on each of the counts. Even though the separate counts reflect a persistence in the offending, it would not have been appropriate simply to multiply the penalty that might have been imposed for a single instance on each of the two types of offending six times over. Nonetheless, it remains the case that the single overall penalty imposed is a relatively small proportion of the maximum penalty to which the appellant was exposed.
However, in this case there are several peculiar features of the matter that have persuaded me that the sentence was manifestly excessive and for that reason should be reduced.
First, the circumstances in which the appellant came to practise without being registered are relatively unusual. His practise in South Australia commenced on a visit from the United Kingdom and developed from occasional work to his permanent placement in February 2008. In those circumstances it is at least more understandable how the offending came about.
Secondly, the appellant was in fact registered at the relevant time in an Australian jurisdiction and, again, that might explain to some extent the admitted slackness in obtaining separate registration in this State although, of course, it does not justify it. Nonetheless it is a circumstance which lessens his culpability.
Thirdly, I proceed on the basis that at least until early February 2008 the appellant was covered by insurance which he had taken out in the United Kingdom. I proceed on that basis even though the submission of his counsel before the Magistrate did not go so far as to expressly assert that the insurance was applicable notwithstanding the appellant’s failure to register in this State. Although the appellant’s counsel below did not go that far, I am satisfied that that is what he intended to convey; indeed that could have been the only point of making the submission that he did. The submission that the insurance taken out in the United Kingdom covered temporary practice outside of the United Kingdom was not challenged by the prosecutor of this matter in the Magistrates Court. I am prepared to accept that as a result the appellant and his counsel proceeded on the basis that it was accepted that the insurance covered him during the time that he was practising temporarily in South Australia. I shall therefore also proceed on that basis.
For the remainder of the period I observe first that there was only a very small risk of injury given the appellant’s qualifications and experience. Additionally, although there is room for argument about this, any patients who had suffered injury and who were not covered by the insurance in the United Kingdom or the appellant’s own assets may have had some claim against the partners and other members of the practice in which the appellant worked. I accept that it is far from certain that any injured patients could have successfully claimed against the other members of the practice given the nature of the arrangements between the appellant and that practice. However, I think there was always some likelihood that the other practitioners would stand behind any claim made against the appellant either because they were in fact legally liable or because it was in their professional and financial interests to do so. For similar reasons, there was only a low risk that patients would be left to bear the cost of the services provided by the appellant if their claims for medical benefits had been refused. It has not been alleged that any patients have been left out of pocket.
Fourthly, it is of some importance that there was strong evidence of the appellant’s good character. A number of references were received; some from other practitioners and also at least one reference from a legal practitioner who was socially acquainted with the appellant.
Finally, the appellant did register after his failure to do so was brought to his attention by the Board. In so doing, he subjected himself to the ongoing discipline and scrutiny of the Board. In particular, the appellant may be dealt with for the very breaches which are the subject of these charges. That is a matter which reduces the relative culpability of his offending.
I also observe in passing that the penalty, if it were allowed to remain at $10,000, would be a significant proportion of the annual income earnt by the appellant. It would also be something like 20 times the fee saved by the appellant by not registering.
Having determined for these reasons that the fine was manifestly excessive, it is unnecessary to deal with the challenge to the adequacy of the Magistrate’s reasons.
I must now turn to impose the penalty that best reflects the objective circumstances of the offending and the personal circumstance of the appellant. Ultimately in my view a single overall penalty of $5,000 is appropriate. I repeat again the considerations to which I have already referred and to the relative weight I have given them. In particular, I wish to emphasise the relatively low risk of any actual harm by way of personal injury or financial loss occasioned by these offences, the fact that the appellant has now subjected himself to professional discipline by re-registration, and his personal circumstances. A penalty of $5,000 will operate as a significant personal deterrent and at least adequately serves the purpose of general deterrence. I therefore set aside the penalty of $10,000 imposed by the Magistrate and instead impose a fine of $5,000.