Lee v The The Queen

[2022] NSWDC 178

District Court

New South Wales

Medium Neutral Citation:

Lee v R [2022] NSWDC 178

Hearing dates:

24 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) Allow the appeal

(2) Confirm the conviction

(3) Vary the ICO to one of 18 months to commence on 20 January 2022

(4) Confirm the fine of $10,000

(5) Confirm the orders for professional costs of $3,400

Catchwords:

SENTENCING — Penalties — Intensive correction orders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Health Practitioner National Law Act 2009

Health Practitioner Regulation National Law (NSW) No 86a of 2009

Category:

Principal judgment

Parties:

Zhin Sin Lee (Appellant)
Australian Health Practitioners Regulation Agency (Respondent)

Representation:

Ms Razia Shafiq (counsel for the Appellant)

Ms Hoile (counsel for the Respondent)

File Number(s):

2021/00298925

 Decision under appeal 

Court or tribunal:

Sydney Local Court

Jurisdiction:

Criminal

Date of Decision:

20 January 2022

Before:

Bartley LCM

File Number(s):

2021/00298925

Ex tempore revised Judgement

Introduction

1. Zhin Zin Lee pleaded guilty on 18 November 2021 and was convicted on 20 January 2022 of an offence contrary to cl 116(1)(d) Health Practitioner Regulation National Law (NSW) No 86a of 2009. The offence, shortly stated, was being not registered as a health practitioner and claiming qualification to practise. The offence occurred between 18 January 2021 and 9 August 2021, a period a little less than eight months. The maximum penalty specified for this offence since 1 July 2019 is imprisonment for three years and a fine of $60,000. The Local Court jurisdiction is limited to two years and a fine of $11,000.

The Local Court Determination

2. The magistrate accepted that the line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and identified a term of imprisonment of two years to be served by way of an intensive corrections order in the community and imposed a fine of $10,000 with professional costs of $3,400. There is a stay in place as a consequence of the appeal upon the grounds of severity that was lodged, from 20 January 2022.

The Facts

3. This is a serious crime. I would not come to the view that it is a worst-case example, it would in my view fall somewhere about or perhaps a little above mid-range of objective seriousness. I have come to the view that upon the synthesis the material that the magistrate ought to have considered, that the ultimate outcome was more than it ought to have been for the appellant.

4. The sentence of two years to be served by way of an intensive corrections order I believe did not bring adequately to bear the objective seriousness of the offending and the fact that she pleaded guilty at the earliest opportunity. Where one places an offence on a scale of seriousness is always a matter of judgement and minds will differ. I am satisfied it is at least the mid-range, and ultimately, that it is above mid-range [1] .

   1. At this point, as I delivered this ex-tempore judgement counsel rose to advise that there was no stay in place for the intensive corrections order, but there was a stay in place for the fine. The Crown advised that it had no information to gainsay counsel’s advice to this effect and I proceeded accordingly.

5. I note that counsel has risen to tell me that the fine was stayed but not the intensive corrections order of two years, that the appellant reported to Community Corrections immediately upon the termination of the matter, and supervision has been in place since that time.

6. The facts have been provided under the auspices of the Australian Health Practitioners Regulation Agency, referred to as the AHPRA in the statement accepted by the appellant for the purposes of the prosecution. The legislative scheme is described with reference to the statutory instruments and relevant provisions within, which included that the objective of this scheme, which is a national scheme, is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.

7. The objective and guiding principle of the Health Practitioner National Law Act 2009 (National Law) includes the protection of the health and safety of the public, which must be the paramount consideration in the exercise of functions under a New South Wales provision within this law. Part 7 div 10 National Law engages the protective jurisdiction of the national scheme, by amongst other things, the creation of several offences. Of relevance in this matter is that an individual who is not registered with the Medical Board of Australia must not claim or hold themselves out as being registered as a nurse or midwife under the National Law: s 116.

8. All health practitioners registered to practise are included on the Public National Register managed by the Australian Health Practitioners Regulation agencies. People who are medical graduates in Australia must apply for provisional registration to undertake a period of accredited intern training to become eligible for general registration. Interns are only permitted to work in accredited positions amongst other requirements for provisional registration. The applicant must have been awarded a primary degree in Medicine and Surgery after completing an approved program of study.

9. The Health Education and Training Institute have delegated authority under the Ministry of Health to allocate trainees to pre-vocational training networks in New South Wales. Medical students ordinarily apply to the Health Education and Training Institute toward the start of their final year of study. As part of the process the relevant university provides a university completion letter which indicates that the student is in their final years of study and will complete the relevant degree subject to meeting the requirements of the degree by the end of the year.

10. The registration history of the appellant is as follows. She is not and has never been registered with the Board with provisional or full registration as a medical practitioner or any other health practitioner and there are no pending applications. The appellant held medical student registration but this lapsed in December 2020. She has not completed the relevant qualifications required to practise as a medical practitioner. On 3 March 2014 she commenced study at the University of New South Wales in Bachelor of Medical Studies/Doctor of Medicine Program. Her expected date of completion was at the end of 2019. On 3 June 2019 she applied for the January 2020 intern intake, she was offered a position with New South Wales Health on 15 August 2019. On 10 October 2019 she notified New South Wales Health that she would decline the internship as she had failed her exams. On 28 October 2019 the University of New South Wales held a meeting with the appellant during which it was agreed she would repeat a subject the following year with the expected completion date at the end of 2020.

11. The events to that point and the sequence of unfolding circumstances reveal that she was aware of her obligations and knew that she could not accept the internship having failed her exams and undertook the opportunity to repeat the course.

12. In June 2020 she applied for the 2021 intern intake. On 30 September 2020 the university sent an email to her reporting that she had failed six core disciplines and was not eligible to sit a supplementary exam. There was a further meeting between the university and the appellant during which it was discussed that she would be excluded from the medical program. On 9 October 2020 the university emailed her to confirm that she would discontinue her Medicine Degrees and be awarded a Bachelor of Science (Medical) following successful completion of a further 12 units of study. The appellant did not withdraw her application for an internship lodged in June 2020.

13. On 1 December 2020 she was offered a position as an intern with New South Wales Health. The same day she confirmed her acceptance of a position as a post-graduate year 1 trainee intern. On 3 December 2020 the Health Education and Training Institute emailed the appellant advising her that her appointment as an intern, amongst other requirements, was subject to obtaining registration with the Board. In late December 2020 she was offered a position as a medical intern at Bankstown-Lidcombe Hospital. On 22 December 2020 she signed an acceptance offer of temporary employment in the position of intern. This document set out clearly that she was employed under the Public Hospital and Medical Health Officers Award. In signing the acceptance offer she declared that the qualifications she had asserted she held in her application process were genuine.

14. On 18 January 2021 she commenced employment as an intern at the hospital. Between that date and 9 August 2021 she completed 126 shifts as an intern. The hospital identified performance concerns as early as February 2021 and from that time she was closely supervised by either a registrar or consultant. She was taken off the standard roster and give a role as a supernumerary. The precise meaning of that term is not articulated but as I understand it she was an additional unit with other interns employed at the hospital with limitations upon the extent to which she could perform her function without supervision.

15. On 15 and 18 April 2021 she completed the end of term assessment and mid-term appraisal forms. On both the Australian Health and Practitioners Regulation Agency Registration number field was left blank. In mid-April 2021 the hospital made the decision that she would continue to work as a supernumerary to other interns. There was agreement that a clinical risk existed in her working independently. On 1 June 2021 she completed a mid-term appraisal form, once again the Australian Health Practitioners Regulatory Agency number field was left blank.

16. On 9 August 2021 the hospital discovered she was not and had never been registered with the Australian Health Practitioners Regulation Agency and she met with supervising doctors. She was asked whether she held registration. She first responded that she was waiting for documentation from the university but then disclosed that she had received communication in 2020 that she had not completed her studies. Confirmation from the university was obtained by the hospital and she was removed from duties the same day. Her gross annual salary for the first year of her internship was $69,649. During her employment as an intern she was paid $31,445.62. On 12 August 2020 the Australian Health Practitioners Regulation Agency wrote to the appellant by email informing her of the provisions of the National Law that were relevant to her circumstances and that an investigation would be commenced.

The Appellant

17. The appellant was born in 1994 and is therefore in her late 20s and is clearly a young person without any antecedent criminal offences within this context or otherwise; she is to be seen to be a person of good character but for this misconduct.

18. There is a sentence assessment report telling me that she lives alone in private accommodation, with her family resident in Malaysia. She has no family in Sydney. She came into this country on a student visa but she remains on a tourist visa, financially supported by her family from Malaysia.

19. Regarding the offending it is said that she had followed procedure and had withdrawn her initial application prior to the offending because she had failed her final exams but claimed to be confused as to why she received the subsequent offer of internship and therefore proceeded to accept it. I do not accept that as a genuine representation; in my view, upon the material I have, clearly she knew that she was not entitled to accept the position given to her and should have rejected it as she had done earlier. I do not believe there is any other inference available from the material that is before me.

20. She said that she was unaware at the time of the potential consequences of her actions and that she accepted her offer of employment so that study was not wasted. I do not accept that that was a valid reason for taking this opportunity given to her and I do not accept that she was unaware at the time of the potential consequences of her actions. If she had learned anything during studies, I would expect it would have been the significance of being qualified to engage upon the important work that doctors perform in our public hospitals.

21. She expressed shame for her actions and I accept that she has appropriate remorse for the misconduct reflected in the plea of guilty and the information that she has provided by letter and by way of the representations to a psychologist. She can now see, she said, according to the report, the risk to patients of making medical judgements as an unqualified person.

22. The psychologist, Kris North, provided a report for the assistance of the magistrate, written on 12 January 2022. The assessment made was by audio visual link on 20 December 2021 over two hours. There are several factors which I accept as motivating or explaining why the appellant engaged in the offence. She felt pressure from her family to perform well in her studies, she was an only child born to her parents of Chinese heritage, and the demands upon her were significant. Her failed exams in 2019 and 2020 impact upon her, causing a decline in mental health in 2018.

23. The psychologist offered an opinion that upon the history she has given she meets the criteria for an adjustment disorder with mixed anxiety and depressed mood. However, upon the assessment made by what is offered as an objective process by of the Beck Anxiety Inventory and the Beck Depression Inventory, she was found to suffer a mild range of anxiety and mild range of depressive symptoms at the time of the assessment. Bearing in mind that against the assessment by the psychologist, once, over two hours, and the findings on the psychometric testing performed through the medium of audio visual link, one would not be surprised to see that she did have at least mild anxiety or depressive symptoms as a consequence of failing her exams twice, against the background of the influence of her mother, with the unfortunate loss of her father to cancer at the age of 70 whilst she was embarking upon her studies, and wanting to not disappoint her family and perhaps others connected with her in her homeland. One might expect that to have caused her a measure of anxiety and depression. Also of course by the time of the assessment by the psychologist she was the subject of prosecution with the risk of being incarcerated for what is, in my view, a very serious offence.

24. She gives a slightly different explanation to the psychologist according to the report in para 7. She accepted the offer that was made despite having been informed that she had failed her exams. When asked why, she said she initially accepted the offer with intention to withdraw upon receiving further advice regarding her right of appeal. She spoke of it being difficult for international students to secure internships, she did not want to miss the opportunity, and she ultimately accepted the internship despite her decision not to appeal her results. Clearly, that reflects an awareness of what she was doing and that she knew that she was doing wrong.

25. She is said to perhaps have suffered impact upon her decision-making abilities during this period because of the pressures to which I referred. The difficulty with that proposition is that there was not only one decision she made; she continued in this endeavour for a period of almost eight months in circumstances where her performance had been assessed as inadequate, requiring her to be supervised which should have, one would have thought, sounded alarm, and encouraged her to withdraw from the arrangement. In any event, she acknowledges that what she did was wrong and she is, I accept, unlikely to be found in circumstances such as this again.

26. Another representation attributed to her by the psychologist of note is that she identified the onset of difficulties within her role from February 2021, noting that she had struggled, she had lagged behind her fellow interns, and was subject to additional supervision within her workplace. Again, circumstances that ought to have sounded an alarm to her.

27. Paragraph 15 perhaps succinctly explains why she is where she is today:

“Ms Lee described the onset of depressive symptoms and anxiety from 2018 onwards noting these symptoms had developed as a result of her father’s illness. For example, she described a generally lowered mood from this time. She also described stress related to the disruption of her studies in 2018 as impacting on her academic performance, particularly in relation to the clinical component of her course. It was also noted that Ms Lee described feeling pressure from her family to perform well in her studies noting her parents had ‘high expectations’ of her from a young age.”

28. In paragraph 16 the report continues:

“It was considered likely that both grief issues and academic stress had both contributed to the development of depressive symptoms during this period. In addition to depressive symptoms Ms Lee described her stress levels as escalating from October 29, subsequent to being informed she had failed her final examinations.”

Consideration

29. It is said on her behalf that the Court could take the view that the line in s 5 Crimes (Sentencing Procedure) Act 1999 has not been crossed. I do not agree with that. The matter of greater significance in the exercise today is the aspect of general deterrence. The Crown in the submissions it provides reminds me of the provisions and the maximum penalty and the sentencing principles to which I have referred, and the fact that the courts have accepted that general deterrence in such matters is of great significance, measured against the requirement that the protection of the health and safety of the public must be the paramount consideration in the decision to be made in this case. The Crown points to the following factors as informing objective seriousness. The appellant pursued the opportunity to be employed as a medical intern knowing that she had not completed her undergraduate degrees. She had been excluded by the university from the medical program. She could withdraw her application to HETI for an internship given she had done so the year before. She was required to hold provisional registration as a medical practitioner, and she was not eligible for that provisional registration. She was not qualified to practise as a medical practitioner and knew so when she accepted the offer of temporary internship. She completed and signed documents which clearly set out the employment to which she aspired. She completed 126 shifts across eight months, undertaking the duties of an intern, and remained silent as to her lack of qualifications and registration. The risk to the public was high given that she as an unqualified and unregistered person was providing medical care albeit under supervision brought about by the results of concerns about her competence. It was within the period of the pandemic with the increased burden it caused to public hospitals. She could not have held the relevant professional indemnity insurance. There was no requirement for her to undertake continuing professional development, but I do not bring that to account as a significant factor. She only ceased in this endeavour once the hospital became aware of her lack of qualifications and registration. At first instance she maintained that she was waiting for documents from the university.

30. Aggravating factors identified are that the offence was committed without regard for public safety. That has some significance in this case. There were a series of criminal acts across the period of eight months upon which she engaged. The offences were committed for financial gain. I do not come to the view that this was the motivation; I accept what has been said by the psychologist that she was motivated by concerns over her family’s perception, and of those associated with them, and their perception of her if they had learned that she had failed in her studies in this country. I agree the conduct was not opportunistic; her activity involved a measure of planning and misrepresentation and duplicity to enable her to continue as long as she did.

Orders

31. Thus I am satisfied that line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed. I agree though that the length of the sentence identified by the magistrate was too long in the circumstances. Therefore, I shall allow the appeal, I confirm the conviction, I confirm the sentence of imprisonment but I vary it to one of 18 months to commence on the date at which she submitted to the supervision of Community Corrections, which I am told was on the day of her conviction, and if the Court made orders in accordance with the Crimes (Sentencing Procedure) Act, it would have been an order that the ICO commence forthwith. The supervising office is at Leichhardt. I confirm the fine of $10,000. The document in front of me refers to a $10,000 fine on each sequence, I note there is only one sequence to which the fine attached.

32. The order for professional costs is confirmed. No other orders are sought. The materials will remain on file.

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Endnote

Decision last updated: 26 May 2022