Nursing and Midwifery Board of Australia v Bernetzke - [2023] QCAT 154

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Bernetzke [2023] QCAT 154

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(applicant)

v

SIMMONE BERNETZKE

(respondent)

APPLICATION NO/S:

OCR192-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 March 2023 (ex tempore)

HEARING DATE:

22 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Mr Ross Ashcroft
Mr Brent Dixon

Ms Laura Dyer

ORDERS:

1. In respect of Allegation 1, Ms Bernetzke has behaved in a way that constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.

2. In respect of Allegations 2 and 3, Ms Bernetzke has behaved in a way that constitutes unprofessional conduct within the meaning of the definition in section 5 of the National Law.

3. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.

4. Pursuant to s 196(2)(b) of the National Law, the following conditions be imposed on the respondent’s registration:

(i) The respondent is required to undertake an educational course in professional accountability.

5. Pursuant to s 193(3) of the National Law, the condition identified in 4(i) of this decision has a review period of 12 months.

6. Part 7, Division 11, Subdivision 2 of the National Law applies to the condition.

7. Pursuant to s 196(3) of the national law, the review period for the condition is 12 months from the date of the Tribunal’s orders.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT – where the respondent enrolled nurse was convicted of five offences of obtaining a financial advantage for herself from a Commonwealth entity – where the applicant makes and the respondent accepts further allegations failure to notify – where the findings and sanction are agreed between the parties – whether the Tribunal should make the orders sought

Crimes Act 1914 (Cth) s 21B

Health Practitioner Regulation National Law (Queensland) ss 5, 193, 196

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This proceeding is concerned with an application brought by the Nursing and Midwifery Board of Australia seeking certain findings and orders concerning the respondent, Ms Simmone Bernetzke, who holds registration as an enrolled nurse.
On 11 November 2022, this Tribunal made the following directions:
1.    The Respondent email the Tribunal and the Board to advise if she consents to the agreed facts, agreed characterisation and agreed sanction the Board has proposed and state the Respondent seeks the matter be determined on the papers and does not wish to appear or make any further submissions in relation to the matter, by:
5 pm 11 November 2022.
2.    The Board is to file in the Tribunal and serve on the Respondent one copy of its written submissions, no more than 3 pages, addressing why the proposed characterisation and sanction are appropriate in the agreed bundle of documents by:
4 pm on 25 November 2022.
3.    The matter be determined on the papers, assuming directions 1 and 2 are met after 25 November 2022.
On the same day, the respondent advised the Tribunal as follows.
To whom it may concern,
Firstly, thank you for your time this morning in hearing this matter.
As per the directives set out by her Honour this morning, please see below.
I, Simmone Bernetzke, hereby, consent to and agree and accept the following:
1. Agreed facts stated throughout the documents.
2. The characterisation of the agreed facts.
3. The sanctions proposed to be implemented.
I have the full documents outlining in detail the above.
Thus I concur.
Thus, I am hereby emailing as her HR this morning, this directive to be received by 5pm today, in order for the matter to now continue until conclusion, as I do not wish to be heard any further, for the matter to be fully dealt with “on Paper.”
Thank you once again for your time.
Accordingly, the matter has been determined on the papers.
The applicant Board referred the respondent to the Tribunal on alleging three grounds contained in a Notice of Allegations filed with the Tribunal on 20 July 2022. The three grounds can be summarised as follows:
1. On 16 November 2020, the respondent was convicted of five charges of obtaining a financial advantage for herself, totalling the sum of $35,013.90 from a Commonwealth entity under section 135.2(1) of the Criminal Code (Cth). In respect of those charges, the respondent received an aggregate sentence of 12 months imprisonment. Pursuant to section 21B of the Crimes Act 1914 (Cth), she was released forthwith on a recognisance in the sum of $1,000, on the condition that she be of good behaviour for a period of three years. A reparations order was also made for the outstanding debt owed by Ms Bernetzke at the time of sentence.
2. The respondent failed to notify the Board that she had been charged with the offences within 7 days of becoming aware that she had been charged as required by s 130(1) of the Health Practitioner Regulation National Law (Queensland) (the ‘National Law’).
3. The respondent failed to notify the Board that she had been convicted of the offences within 7 days of becoming aware that she had been convicted as required by s 130(1) of the Health Practitioner Regulation National Law (Queensland) (the ‘National Law’).
The agreed facts set out that the respondent admits all of the grounds alleged and characterise the conduct of the respondent that brings her before this Tribunal in the following way:
On numerous occasions during the period 23 December 2011 to 10 July 2013, whilst in receipt of social security benefits, being Austudy and/or Newstart Allowance, Ms Bernetzke:
(a) Intentionally failed to inform the Commonwealth Department of Human Services (now known as Services Australia)(Department) of a change in circumstances in relation to her income and employment.
(b) Knowingly made 71 false ‘nil’ declarations about her income and employment to the Department when she was employed and receiving income.
In more particular terms, the offending was described as follows:
On 10 August 2020, Ms Bernetzke was charged with having committed five offences of obtaining a financial advantage for herself, totalling the sum of $35,013.90 from a Commonwealth entity under section 135.2(1) of the Criminal Code (Cth)(Charges). The Charges related to the following conduct:
(a) Charge 1 - Between 23 December 2011 and 4 September 2012, Ms Bernetzke obtained Austudy payments amounting to $4,814.64 to which she was not entitled.
(b) Charge 2 - Between 5 March 2013 and 16 April 2013 Ms Bernetzke obtained Austudy payments amounting to $1,481.42 to which she was not entitled.
(c) Charge 3 - Between 30 May 2013 and 10 July 2013 Ms Bernetzke obtained Newstart allowance payments totalling $1,466.53 to which she was not entitled.
(d) Charge 4, Between 15 January 2015 and 3 July 2015, Ms Bernetzke obtained Newstart allowance payments amounting to $4,952.74 to which she was not entitled.
(e) Charge 5, Between 8 October 2015 and 6 April 2018, Ms Bernetzke obtained Newstart Allowance payments amounting to $22,298.57 to which she was not entitled.
Those Commonwealth offences were dealt with in the Magistrates Court at Southport. The sentence imposed was to this effect; that the respondent received an aggregate sentence of 12 months imprisonment, but pursuant to section 21B of the Crimes Act 1914 (Cth), she was released forthwith on a recognisance in the sum of $1,000, on the condition that she be of good behaviour for a period of three years. An order for reparations to the Commonwealth was made in the sum of $3,043.64, representing the outstanding debt owed by Ms Bernetzke at the time of sentence. The respondent was also required to pay costs in the sum of $101.80. References contained within material before the Tribunal speak highly of the respondent as a person. It is also apparent that during the time of the offending, the respondent was going through a particularly and tragic period in her life. It was a period dominated by extreme domestic violence and stalking on the part of her one-time partner.
During relevant periods, the respondent was assaulted, suffered physical and property damage. She was required to move residences on no less than 11 separate occasions in order to avoid her violent partner. It is also noted that the respondent has a good work history and had no previous criminal history. It is also tolerably apparent that these acts of dishonesty were not motivated by personal greed, but by the circumstances she found herself in at the time. In a written statement provided by the respondent, which would appear to have been accepted by the sentencing Magistrate, the respondent said in part:
So, yes, I did obtain moneys from Centrelink I was not legally entitled to. However, (and I stated this in court as well), not one single cent was spent on any “designer handbags” or new furniture’s etc etc. It was ALL used, in conjunction with my wages, on moving houses, exit cleans, excess bills and all of his expenses that he put onto me. He threatened and did, smash my car a number of times. More expenses. And to give him his freedom to leave me alone, I even had to faulk out monies for him to buy them, yes, cars. When had had a car, he would leave me alone and Id hope never track me again.
In my view, it is the view of the Tribunal that it is unnecessary to dwell on this matter in any greater detail. As the parties have agreed to what the appropriate findings and orders the Tribunal ought make, that the parties are in agreement, of course, is not the end of the matter.
It is a powerful consideration, but, at the end of the day, it is for the Tribunal to decide what orders ought be made. That said, the Tribunal is of the view that save for one of the orders sought, the orders agreed to ought be made. In paragraph 5.1 of the agreed schedule of facts, under the heading Proposed Sanctions subparagraph (b) seeks an order that pursuant to section 196(2)(d) of the National Law, the respondent is suspended for a period of two months. On balance, the Tribunal has reached the conclusion that a suspension for such a short period of time, having regard to all the relevant circumstances, would serve no good purpose. Accordingly, the Tribunal is not inclined to make that order.
Otherwise, the findings and orders of the Tribunal are as follows:
1.In respect of Allegation 1, Ms Bernetzke has behaved in a way that constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law.
2.In respect of Allegations 2 and 3, Ms Bernetzke has behaved in a way that constitutes unprofessional conduct within the meaning of the definition in section 5 of the National Law.
3.Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
4.Pursuant to s 196(2)(b) of the National Law, the following conditions be imposed on the respondent’s registration:
(i) The respondent is required to undertake an educational course in professional accountability.
5.Pursuant to s 193(3) of the National Law, the condition identified in 4(i) of this decision has a review period of 12 months.
6.Part 7, Division 11, Subdivision 2 of the National Law applies to the condition.
7.Pursuant to s 196(3) of the national law, the review period for the condition is 12 months from the date of the Tribunal’s orders.