PSYCHOLOGY BOARD OF AUSTRALIA and FAWCETT - [2023] WASAT 86

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   PSYCHOLOGY BOARD OF AUSTRALIA and FAWCETT [2023] WASAT 86
MEMBER:   PRESIDENT PRITCHARD
DR A GARTON, SENIOR SESSIONAL MEMBER
MR M BENTER, MEMBER

HEARD:   15 SEPTEMBER 2023
DELIVERED          :   15 SEPTEMBER 2023
FILE NO/S:   VR 178 of 2019
BETWEEN:   PSYCHOLOGY BOARD OF AUSTRALIA
Applicant
AND
LUKE DAVID FAWCETT
Respondent

Catchwords:

Vocational regulation – National Law – Psychologist – Provisional registration as a psychologist – Professional misconduct based on conduct outside practice of profession – Fit and proper person to hold registration in the profession – personal characteristics necessary to carry out work of psychologist – Practitioner convicted of two counts of murder

Factors relevant to determining appropriate penalty – principles in relation to imposition of penalty – Personal deterrence – General deterrence – Cancellation of practitioner’s registration as a psychologist – Disqualification from applying for registration as a registered health practitioner – Prohibition from providing any health service.

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 279
Health Practitioner Regulation National Law (WA) Act 2010 (WA), Pt 8, s 4, s 5, s 31, s 35, s 108, s 196(1), s 196(1)(b), s 196(1)(b)(iii), s 196(2), s 196(2)(a), s 196(2)(e), s196(4)(a), s 196(4)(b), s 207
Health Practitioner Regulation National Law Regulation 2018 (WA), r 4

Result:

Practitioner reprimanded
Practitioner's provisional registration as a psychologist is cancelled
Practitioner disqualified from applying for registration as a registered health practitioner for 40 years
Practitioner prohibited from providing any health service for a period of 40 years

Category: B

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	No Appearance

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	In Person

Cases referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CCR 336
Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Chinese Medical Board of Australia v Zhou [2020] SACAT 23
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Chiropractic Board of Australia v Oorloff [2019] VCAT 2010
Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20
Dental Board of Australia and Nairn [2022] WASAT 86
HCCC v Buksh [2013] NSWNMT 22
Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127
Medical Board of Australia and Pepulani [2021] WASAT 128
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Holder [2021] SACAT 47
Medical Board of Australia v Sze-Tho [2019] VCAT 244
Medical Board of Australia v XOT [2023] VCAT 620
Minitti v Commissioner of Police [2010] WASCA 198
Mustac v Medical Board of Western Australia [2004] WASCA 156
Nadkarni v Medical Board of Australia [2022] WASCA 109
Nursing and Midwifery Board of Australia v Freeman [2020] SACAT 88
Panegyres v Medical Board of Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Psychology Board of Australia v Griersmith [2019] VCAT 52
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Singh v Medical Board of Australia [2019] WASCA 51
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In these proceedings, the Psychology Board of Australia (Board) alleges that the respondent, who holds provisional registration with the Board as a psychologist, behaved in a way that constituted professional misconduct, for the purposes of s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (National Law)[1] in that on 23 September 2021, he was convicted of two murders which he committed on 11 April 2020 and on 12 April 2020 (offences).
[1] The National Law is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), and applies in Western Australia by s 4 of that Act.
The Board also alleges that by that conduct, the respondent failed to comply with s C.1.1 and s C.1.2 of the Australian Psychological Society's Code of Ethics as adopted by the Board (Code) which requires that psychologists avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist and avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology.
The Board seeks that the Tribunal make a finding, pursuant to s 196(1)(b)(iii) of the National Law, that the respondent has behaved in a way that constitutes professional misconduct, that it takes one or more of the forms of action set out in s 196(2) of the National Law, and that it make an order that the respondent pay its costs of these proceedings. However, in the course of the hearing today, counsel for the Board did not press for an order for costs.
The respondent, who is in prison, has been on notice of these proceedings since they were commenced in the Tribunal. While he attended some early directions hearings, more recently, prison staff have advised, on the occasion of each directions hearing, that he does not wish to attend the directions hearings. He has been served with all of the documents filed by the Board, and with the orders made by the Tribunal. He has chosen not to advance any defence to the application, or to file any documents in relation to it.
On 25 July 2023, the President made orders that the final hearing would deal with the Board's application for a finding that the respondent has engaged in professional misconduct and, if established, with any penalty which should be imposed. The President made a specific order that the respondent was put on notice that if he did not attend the final hearing, orders may be made in his absence. He was given leave to attend this hearing by video‑conference.
Staff of the prison have advised the Tribunal that the respondent has declined to attend the hearing today. We find that the respondent has been given notice of, and the opportunity to participate in, this hearing, and notice that if he failed to attend, orders may be made in his absence. In those circumstances, we are content to proceed in his absence.
For the reasons which follow, we will make a finding that the respondent has behaved in a way that constitutes professional misconduct, on the bases alleged by the Board in relation to the offences. We will also reprimand the respondent, cancel his registration, disqualify him from applying for registered as a registered health practitioner for 40 years, and prohibit him from providing any health service for a period of 40 years.
In these reasons for decision we deal with the following matters:
(a)The grounds for the application;
(b)The evidence relied upon by the Board;
(c)Our findings as to the conduct in which the respondent engaged;
(d)The Code;
(e)Why the conduct constituted professional misconduct under the National Law;
(f)Relevant principles in relation to the imposition of a penalty under s 196(2) of the National Law;
(g)Considerations relevant to the imposition of the penalty in this case;
(h)The penalty which we will impose;
(i)The orders which should be made.

(a) The grounds for the application

The application was filed in the Tribunal on 23 December 2019. Initially the application alleged that the respondent had engaged in professional misconduct on the basis of conduct which did not include the respondent's commission of the offences. Following his conviction for the offences, the Board was granted leave to amend the grounds of the application to add the commission of the offences to the various conduct which was alleged to constitute professional misconduct, and filed Further Amended Grounds of the Application on 21 January 2022. On 28 March 2023, the President made orders permitting the Board to file substituted grounds of the Application, which were filed on 4 April 2023 (Substituted Grounds), in which it abandoned any reliance on conduct other than the respondent's commission of the offences, and his breaches of the Code, as the bases for its allegation that he engaged in professional misconduct.
In the Substituted Grounds, the Board alleges, in summary:
(i)That it is established under s 31 of the National Law with the functions in s 35 of the National Law;
(ii)That the respondent held provisional registration with the board as a psychologist from 7 August 2018, until his registration was suspended on 5 May 2020, when the Board decided to take action against him under the National Law;
(iii)By no later than 4 April 2020, the respondent had formed an intention to kill his neighbour, Ms C,[2] who resided in the same apartment building where he lived, and began taking steps towards carrying out that intention;
(iv)On 11 April 2020, the respondent entered Ms C's apartment and stabbed her to death using a bread knife.
(v)On 12 April 2020, Ms C's brother, Mr J, went to Ms C's apartment to check on her, and the respondent stabbed him to death using a large hunting knife;
(vi)The respondent was charged with offences under s 279 of the Criminal Code,[3] for the murder of Ms C and the murder of Mr J, and was tried before a jury in the Supreme Court;
(vii)During his trial, the respondent's case was that an unknown person murdered Ms C, and he had killed Mr J by stabbing him multiple times with a knife, but that he had acted in self‑defence;
(viii)On 23 September 2021, the respondent was convicted of the offences;
(ix)On 4 February 2022, the respondent was sentenced to two life sentences with a minimum non-parole period of 34 years, backdated to 13 April 2020;
(x)By reason of the conduct outlined in the grounds and summarised above, the respondent engaged in professional misconduct as defined in s 5 of the National Law in that he was convicted of the offences, and failed to comply with s C.1.1 and s C.1.2 of the Code, and that that conduct is inconsistent with the respondent being a fit and proper person to hold registration in the psychology profession.

(b) The evidence relied upon by the Board

[2] We have anonymised the names of the victims in the published version of these reasons.

[3] Criminal Code Act Compilation Act 1903 (WA) (Criminal Code).

The Board filed a book of documents dated 12 February 2021. The book was tendered into evidence but the only document on which the Board relied was a copy of the Code.[4]
[4] Exhibit 1.
The Board filed a second book of documents dated 31 October 2022. That book of documents was tendered in evidence.[5] The key documents in that book of documents are a copy of the respondent's criminal history (criminal record) and a copy of the sentencing reasons given by Smith J when she sentenced the respondent for the offences (Sentencing Remarks).
[5] Exhibit 2.
The Board filed a third book of documents dated 28 June 2023,[6] which contained a copy of a letter from the Australian Health Practitioner Regulation Agency (AHPRA) dated 4 May 2020, which advised that the Board had, on 4 May 2020, taken immediate action to suspend the respondent's registration, and an extract from the register of health practitioners which indicates that the respondent had a provisional registration as a psychologist, but that he is currently suspended.
[6] Exhibit 3.
The Board also filed an outline of submissions in relation to findings, penalty and costs, dated 28 June 2023 (Board's submissions).

(c) Our findings as to the conduct in which the respondent engaged

The Board bears the onus of proving its case against the respondent. The civil standard of proof applies in these proceedings, together with the Briginshawapproach, in recognition of the fact that the allegations made by the Board are very serious. Consequently, clear and cogent evidence needs to be adduced by the Board, and the Tribunal must feel an actual persuasion of the occurrence or existence of relevant facts before it will find the respondent guilty of professional misconduct.[7]
[7] Cf, eg, Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash) at [55].
In these reasons, when we express ourselves to be satisfied, and to make a finding, we do so on the balance of probabilities and on the basis of evidence which we regard as clear and cogent, having regard to what was said in Briginshaw.[8]
[8] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CCR 336 (Briginshaw).
In making findings of fact we have had regard to the framework of the National Law and to the Health Practitioner Regulation National Law Regulation 2018 (WA) (Regulations) which confers status on the Board to bring these proceedings. We have also had regard to the evidence as to the respondent's registration. His provisional registration was due to expire on 6 August 2019 but no decision in relation to its renewal or cancellation had been made by the time the Board took immediate action to suspend his registration on 4 May 2020. Under s 108 of the National Law the respondent's registration continued pending a decision by the Board to renew or cancel it. Under s 207 of the National Law, the effect of the suspension of the respondent's provisional registration was that he was suspended for all purposes, save those under Part 8 of the National Law, which include disciplinary proceedings. In making findings of fact in relation to the respondent's conduct, we have relied upon the respondent's criminal record, and the sentencing remarks, which evidence was uncontested in the Tribunal.
Having regard to that material, we are satisfied, and we find, that the allegations particularised in the Substituted Grounds of Application dated 4 April 2023 are proved. It is not necessary to set out each and every one of the particulars of the allegations and the supporting findings made by the sentencing judge in these reasons. For present purposes, it suffices to say that we make the following key findings of fact:
(i)The Board is a National Board for the purposes of the National Law. By regulation 4 of the Regulations, the Board is continued as a National Health Practitioner Board for the psychology profession;
(ii)On 23 September 2021, the respondent was convicted of the murder of Ms C on 11 April 2020; and of the murder of Mr J on 12 April 2020;[9]
[9] Sentencing Remarks at [1].
(iii)The respondent was 27 years old at the time of the offences;[10]
[10] Sentencing Remarks at [76].
(iv)The respondent was well educated, in that he had had a tertiary education and became qualified as a provisional psychologist;[11]
[11] Sentencing Remarks at [81].
(v)The respondent had been employed for a time, but was unemployed at the date of the offences;[12]
[12] Sentencing Remarks at [16], [81].
(vi)The respondent lived in the same apartment building as Ms C. Her apartment was next door to his. In the years before the murders, the respondent and Ms C had a normal, neighbourly relationship;
(vii)By at least 4 April 2020, the respondent had formed an intention to kill Ms C, and took steps to prepare to do so in the days leading up to 11 April 2020, including that he drove to a bush location and dug a shallow grave; and that he bought rope, a tarpaulin and duct tape;[13]
[13] Sentencing Remarks at [23].
(viii)Sometime after 1pm on 11 April 2020, the respondent entered Ms C's apartment and stabbed her to death using a bread knife, in what was a 'sustained, brutal and merciless' attack;[14]
(ix)After murdering Ms C, the respondent stayed in her apartment and used it as his own. He had a shower and sent text messages to an acquaintance. He then went to a store and purchased a tarpaulin, after which he returned to the apartment, wrapped Ms C's body in the tarpaulin and secured it with rope. He left her body in the entry way of her apartment;[15]
(x)On 12 April 2020, Mr J went to Ms C's apartment to check on her. He used his own keys to enter the apartment, and when he did so, the respondent attacked him with a large hunting knife inflicting multiple stab wounds, in what was a 'sustained, brutal and merciless' attack;[16]
(xi)The respondent was arrested on 13 April 2020 and charged with the offences;[17]
(xii)The respondent was tried before a jury in the Supreme Court. He gave evidence at the trial, and gave an account of the events in the weeks leading up to 11 and 12 April 2020 in which he attempted to provide explanations inconsistent with his guilt of the offences. The respondent's case was that an unknown person murdered Ms C. While he did not dispute that he killed Mr J, the respondent claimed that he acted in self‑defence when he stabbed Mr J;[18]
(xiii)The jury's verdicts of guilty on each count of murder indicated that they rejected all of the respondent's evidence about the events of 11 and 12 April 2020;[19]
(xiv)The murder of Ms C involved planning and premeditation. She was a vulnerable victim who had done nothing to provoke an attack, and there was no identifiable explanation for why the respondent murdered her;[20]
(xv)The respondent murdered Mr J in order to avoid detection for the murder of Ms C;[21]
(xvi)The respondent's conduct after the murder of Ms C, and after the murder of Mr J, showed a callous disregard for his conduct, and no remorse;[22] and
(xvii)The respondent was sentenced to imprisonment for life for each of the offences, and was ordered to serve 34 years before being eligible for parole. His sentence was backdated to commence on 13 April 2020.[23]
[14] Sentencing Remarks at [25].
[15] Sentencing Remarks at [27] – [31].
[16] Sentencing Remarks at [43], [44], [46].
[17] Sentencing Remarks at [54].
[18] Sentencing Remarks at [6] – [7].
[19] Sentencing Remarks at [8].
[20] Sentencing Remarks at [105] – [106].
[21] Sentencing Remarks at [108].
[22] Sentencing Remarks at [112].
[23] Sentencing Remarks at [130] – [131].
Having regard to the extract from the register of psychologists,[24] and for the reasons we have already explained, we are satisfied and we find that the respondent had provisional registration as a psychologist from 7 August 2018.
[24] Exhibit 3, page 317.
Having regard to the letter from AHPRA to the respondent's barrister, dated 4 May 2020,[25] we are satisfied, and we find, that on 4 May 2020, the Board suspended the respondent's registration, with the effect under the National Law that we have described.

(d) The Code

[25] Exhibit 3, page 306.

The Board relied on s C.1.1 and s C.1.2 of the Code, which provide:
Psychologists avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist.
Psychologists avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology.
As counsel for the Board conceded, the evidence does not establish that the Code has been adopted by the Board as a means to set standards of conduct for psychologists, nor is there any evidence that departure from the Code would constitute conduct capable of being characterised as professional misconduct.
However, we are satisfied that the facts as we have found them, in relation to the respondent's conviction for the offences, are sufficient, on their own, to justify a finding that the respondent engaged in professional misconduct as defined in the National Law. We turn to explain why that is so.

(e) Why the conduct constituted professional misconduct under the National Law

Section 196(1)(b) of the National Law provides that after hearing a matter about a registered health practitioner, a responsible tribunal (which includes the Tribunal) may decide one or more of the matters set out in s 196(1) of the National Law. Those matters include, relevantly, that the practitioner has behaved in a way that constitutes professional misconduct.[26]
[26] National Law, s 196(1)(b)(iii).

'Professional misconduct' is defined in s 5 of the National Law. The term is defined by way of an inclusive definition. It is not exhaustive, and professional misconduct can be constituted by conduct which does not fall within paras (a), (b) or (c).[27]
[27] Panegyresv Medical Board of Australia [2020] WASCA 58 (Panegyres) at [152] per Vaughan JA (Buss P and Murphy JA agreeing).
For present purposes, the Board relies on paras (b) and/or (c) of the definition of professional misconduct, namely:
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The term 'unprofessional conduct' is defined in the National Law to mean 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers and includes a variety of specified kinds of conduct, including the conviction of the practitioner for an offence under another Act (that is, apart from the National Law) the nature of which may affect the practitioner's suitability to continue to practise the profession'.[28]
[28] National Law, s 5.
The respondent's conduct in committing the offences cannot properly be described as 'professional conduct' and it is somewhat incongruous to speak of the respondent's conduct as conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. In other words, it is not apt to speak of the respondent's conduct as being below the standard reasonably expected of a psychologist with provisional registration. On the contrary, the respondent's conduct is wholly antithetical to the conduct expected of a psychologist, irrespective of their level of training or experience.
In our view, the more appropriate basis for assessing the respondent's conduct in this case is by reference to para (c) of the definition of professional misconduct, which expressly applies to conduct whether or not it occurs in connection with the practice of the health practitioner's profession.
The question, then, is what is meant by conduct which is 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession'.
The term 'fit and proper person' is not defined in the National Law, but its meaning has been the subject of much judicial comment.[29]
[29] Psychology Board of Australia v Griersmith [2019] VCAT 52 (Griersmith) at [67].
The concept of a 'fit and proper person':
… carries no precise meaning. It takes its meaning from the context, from the activities in which the person is or will be engaged and ends to be served by those activities. The concept 'fit and proper person' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.[30]
[30] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at page 380 (Bond) (Toohey and Gaudron JJ).
Assessing whether a person is 'fit and proper' involves a value judgment:
In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[31]
[31] Bondat page 388.
When the legislature uses the expression 'fit and proper person' it gives the widest scope for judgment, and for the rejection of an application for a licence, or for an applicant for registration in a profession.[32]
[32] Cf Minitti v Commissioner of Police [2010] WASCA 198 at [11] (Pullin JA, Newnes JA and Mazza J agreeing), citing Hughes and Vale Pty Ltd v New South Wales [No 2](1955) 93 CLR 127 (Hughes) at page 156; and Real Estate and Business Agents Supervisory Board v Carey[2010] WASCA 109.
In Hughes and Vale Pty Ltd v New South Wales (No. 2), Dixon CJ, McTiernan and Webb JJ observed that: [33]
'Fit' … with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and executive his office, when need is, diligently and not for impotency or poverty neglect it.'
[33] Hughes at pages 156 – 157 (Dixon CJ, McTiernan and Webb JJ).
To similar effect, in Sobey v Commercial and Private Agents Board Walters J said: [34]
The issue whether [a party] has shown himself to be 'a fit and proper person' … is not capable of being stated with any degree of precision. … I think all I need to say is that … what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the [legislation] but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
[34] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at page 76.
The phrase 'fit and proper person' in the National Law does not carry defined criteria but allows for a wide range of matters to be considered.[35]
[35] Griersmith at [67].
In applying the test, a decision maker must make a value judgment and in doing so, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to matters weighing in favour of the person. The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.[36]
[36] Griersmith at [67].
It is essential to the performance of their work that psychologists are persons of the highest integrity. Many psychologists will need to deal sensitively with patients. Not uncommonly, those patients may have suffered trauma, and will be vulnerable to exploitation or further trauma. Many patients may disclose to their psychologist personal information of the utmost confidentiality.
Bearing those matters in mind, we turn to consider the nature of the respondent's conduct, and what it indicates about his fitness to carry out the work of a psychologist. We are in no doubt whatsoever that the conduct in which we have found that the respondent engaged, namely the commission of the offences in the circumstances we have described,[37] is conduct which is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. We are of that view for the following reasons.
[37] Para [18] of these reasons.
First, the offences were at the most serious end of the spectrum of criminal offending, as is evident from the terms of imprisonment and minimum non-parole period which were imposed. The commission of such serious offending, and in the case of Ms C, without any real explanation for why the offence was committed, in and of itself calls into question whether the respondent is a fit and proper person to be permitted to work as a psychologist.
Secondly, the fact that the respondent was willing to engage in such serious offending, on two occasions, gives rise to such a serious concern about his character, as to mean that the general community could not be confident that he would not engage in the commission of further criminal offences.
Thirdly, the offences involved conduct which can only be described as heinous, devoid of any respect for human life, and callous in the extreme. That the respondent engaged in such conduct demonstrates that he lacks the moral integrity and rectitude of character which is essential for a health practitioner who is, by virtue of their registration, held out as able to work safely with the public, and capable of being entrusted to deal appropriately with highly sensitive personal and medical information about patients.
Fourthly, the commission of the offences demonstrated that the respondent had no respect for observing the law. That suggests that he is not a fit and proper person because the public could have no confidence that he will observe the requirements of the law as it applies to the practice of a psychologist.
Fifthly, in the absence of any contribution by the respondent to this hearing, there were no matters drawn to our attention, or which we discerned from the evidence, which weighed in favour of a positive assessment of the respondent's character relevant to his fitness to work as a psychologist.
Accordingly, we are satisfied, and we find, that the respondent's commission of the offences was conduct which is inconsistent with the practitioner being a fit and proper person to hold registration in the profession of psychology.
We therefore find that the respondent, by the conduct we have described,[38] has behaved in a way that constitutes professional misconduct for the purposes of the National Law.
[38] See para [18] of these reasons.
We turn, next, to consider the penalty which should be imposed.

(f) Relevant principles in relation to the imposition of a penalty under s 196(2) of the National Law

Under s 196(2) of the National Law, if the Tribunal makes a decision that the practitioner has behaved in a way that constitutes professional misconduct it may decide to do one or more of the following:
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
If the Tribunal decides to cancel a person's registration, then the Tribunal may also decide to disqualify the person from applying for registration as a registered health practitioner for a specified period, or prohibit the person, either permanently, or for a stated period, from providing any health service or a specified health service, or using any title or a specified title.[39]
[39] National Law, s 196(4).
The Tribunal may also make any costs orders that it considers appropriate.[40]
[40] National Law, s 195 and see also State Administrative Tribunal Act 2004 (WA), s 87(2).
The general legal principles which apply to penalties in vocational disciplinary matters are well settled. The Tribunal's discussion of those principles, in the context of proceedings against a medical practitioner, in Medical Board of Australia and Singh[41] was approved by the Court of Appeal in Singh v Medical Board of Australia.[42] Those principles were recently re-stated by the Court of Appeal in Nadkarni v Medical Board of Australia.[43]Those principles apply equally in the case of psychologists, who are also subject to the National Law.
[41] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Singh 2017).
[42] Singh v Medical Board of Australia [2019] WASCA 51 (Singh 2019).
[43] Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni).
In Dental Board of Australia and Nairn[44] those principles were summarised as follows.
First, the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.[45]
Secondly, the protection of the public has various dimensions. They may include an immediate need to protect the public from the practitioner's conduct. In addition, there may be a need to bring home to the practitioner the seriousness of their conduct, and a need to deter the practitioner from future breaches. An order directed to the latter aspects of the protection of the public involves personal deterrence. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct. An order of that kind may thus be regarded as akin to 'general deterrence'.[46]
Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.[47]
Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that the practitioner is unfit to practise their profession. Where a health practitioner is 'permanently or indefinitely unfit to practise, cancellation of registration rather than suspension will (at least ordinarily) be the appropriate response'.[48] Permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioner's registration, but it is not a necessary condition for cancellation. That is because the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.[49]
[44] Dental Board of Australia and Nairn [2022] WASAT 86 (Nairn) at [13] – [16].
[45] Singh 2019 at [30]; Panegyres at [6]; Nadkarni at [66].
[46] Singh at [32]; see also Mustac v Medical Board of Western Australia [2004] WASCA 156 at [126]; see also Nadkarni at [66].
[47] Singh 2019 at [33].
[48] Singh 2019 at [34], [37].
[49] Singh 2019 at [38], referring to Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 (Chen) at [17] (Basten JA, Leeming and Payne JJA agreeing).
The Tribunal in Nairn went on to say:[50]
The Tribunal also has the power, under s 196(4)(a) of the National Law, to make an order specifying a period within which a person is disqualified from applying for registration as a registered health practitioner. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally. That being the case, all of the various aspects of the protection of the public (discussed above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.[51]
Furthermore, fixing a period within which re-registration may not be sought indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession. But it also permits the possibility that an application for re‑registration after that period will be considered. In determining what order to make, the Tribunal will consider all aspects of the possible orders available to it.[52] It is a matter for the Tribunal to determine the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period.[53]
In contrast, an order for the suspension of a practitioner must be based upon a view that at the end of the period of suspension, the practitioner will be fit to practise.[54]
Fifthly, the Tribunal is able to impose a 'global' penalty in the alternative to individual penalties for each instance of … conduct. That may be appropriate in circumstances where the facts of the case are inextricably woven together or where the penalty for a less serious transgression may be subsumed by the penalty for a more serious transgression.[55]
Sixthly, the appropriate sanction is to be considered at the time of the imposition of the sanction, and not by reference to the date of the [conduct].[56]
Seventhly, in determining the appropriate penalty, the Tribunal engages in the exercise of a discretion. In order to reach a decision, the Tribunal must evaluate and weigh a broad range of factors, including the purpose of disciplinary proceedings, the relevant facts, the various penalty options available, sanctions or penalties imposed in previous cases bearing some similar features to the case in question, personal and general deterrence, the practitioner's personal circumstances and antecedents, and any mitigating factors.[57]
[50] Nairn at [17] – [22].
[51] Singh 2019 at [40], [43].
[52] Chen at [22] (Basten JA, Leeming and Payne JJA agreeing).
[53] Singh 2019 at [45].
[54] Nadkarni at [68].
[55] Singh 2017 at [29]; Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20 at [9].
[56] Singh 2017 at [24].
[57] Nadkarni at [69].
In Medical Board of Australia v Singh,[58] the Tribunal identified twelve possible considerations which may be relevant in determining an appropriate penalty. While those considerations are not exhaustive, they provide a useful framework for considering the circumstances of this case relevant to penalty.
[58] Singh 2017 at [30].
All of these matters are to be considered in the context of the Tribunal's findings as to liability; that is, its findings as to the seriousness of the practitioner's conduct and the practitioner's explanation for it.[59]
[59] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [30(1)] – [30(2)].
We turn, then, to consider the factors identified in Singh, having regard to the facts in this case.

(g) Considerations relevant to the imposition of the penalty in this case

(a) Is there a need to protect the public against further misconduct by the practitioner (personal deterrence)?

The respondent is incarcerated, and it will be more than 30 years before he can even be considered for parole. In those circumstances, a penalty under the National Law does not serve any purpose of practical personal deterrence which is not otherwise served by the practitioner's incarceration. However, the fact that the respondent engaged in such heinous criminal conduct on two separate occasions, on two consecutive days, gives rise to a real concern that this conduct was not an isolated aberration. We note that the learned sentencing judge accepted a submission of the State that the fact that the respondent 'killed a blameless, kind and friendly neighbour is a factor that goes to the inference to be drawn that the protection of the community require[d] that the respondent serve a very lengthy minimum non‑parole period of the life sentence to be imposed on him for the killing of Ms C'.[60]
[60] Sentencing Remarks at [109].

In our view, the need for personal deterrence warrants the imposition of a penalty which ensures that the respondent is not given the opportunity to practise psychology until some years after his earliest possible date of release from prison when (if an application was made for re‑registration, and it is difficult to imagine that occurring) the Board would be in a position to make a realistic assessment of the respondent's fitness to practise at that point.

(b) Is there a need to protect the public through general deterrence of other practitioners from similar conduct?

The nature of the offending in this case was so abhorrent as to be out of the comprehension of ordinary people, but there is nevertheless a need for a penalty to be imposed for the purpose of general deterrence. That is, the penalty imposed should not leave psychologists in any doubt that if they engage in serious criminal conduct, that conduct will have serious professional consequences, in that, apart from any criminal sanction, it may result in their being precluded from practising as a psychologist for a significant period.

(c) Is there a need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions (even if there is no need to deter the practitioner from repeating the conduct)?

The conduct of the respondent was such a pronounced transgression of the criminal law and such a departure from the high standards of behaviour that the public expects of health practitioners that a penalty must be imposed which maintains public confidence in the profession by leaving no doubt that a person willing to engage in such conduct has no place in the profession of psychology.

(d) In cases involving misleading conduct, including dishonesty, can the public and fellow practitioners place reliance on the word of the practitioner?

Although the gravamen of the offending in this case did not involve dishonesty, there is no doubt that the respondent's conduct, and what it indicates about his character, is such that the public and fellow practitioners could not have any confidence in placing reliance on his word.

(e) Has the practitioner breached any Act, Regulations, Guidelines or Code of Conduct issued by the relevant professional body, and if so, did the practitioner do so knowingly?

As we have explained, we are not satisfied that the respondent's conduct involved a breach of the Code. Accordingly, we give this factor no weight.

(f) Did the practitioner's conduct demonstrate incompetence and, if so, to what level?

The respondent's conduct does not raise questions as to his competency — in terms of his knowledge and skills — to undertake the work of a psychologist. We give this factor no weight.

(g) Was the conduct isolated, such that the Tribunal can be satisfied of the practitioner's worthiness or reliability for the future?

The respondent's conduct involved the commission of two extremely serious offences on two separate occasions, albeit on two consecutive days.
For the reasons already given, the repetition of such extremely serious conduct means that we have no confidence in the respondent's reliability or his worthiness for practise in the profession of psychology in the future.

(h) The practitioner's disciplinary history

The Board did not identify any other disciplinary history in relation to the respondent.

Does the practitioner understand the error of his ways, and has he shown remorse or insight (or, if not, does the practitioner thereby demonstrate that he poses a risk to the community)?

As we have found, at his trial and sentencing the respondent did not demonstrate any remorse for his conduct. His case at trial was to deny any involvement in Ms C's death and to claim that he killed Mr J in self-defence, these claims were rejected by the jury. His conduct was brutal and callous.
The nature of that offending demonstrates that the respondent poses a serious risk to the community.
For the reasons already given, we consider that that risk strongly supports the conclusion that the respondent should be prevented from practising as a psychologist for a very significant period, and for some years after his earliest possible date for release from prison on parole.

(j) Does the respondent have any special skills which it is desirable to make available to the public notwithstanding the findings as to his misconduct?

It was not contended that the respondent has any special skills, experiences or commitments to the profession which would be desirable to make available to the public.

(k) The practitioner's personal circumstances at the time of their conduct and at the time of imposing the penalty

We have already set out our findings[61] in relation to the respondent's personal circumstances at the date of his offending. There was no further information available to us in relation to any change in those circumstances, other than for the fact that the respondent is now in prison, and will remain there until he is at least 61 years of age.

(l) Any other matters relevant to the practitioner's fitness to practise, or which may be regarded as aggravating his or her conduct or mitigating its seriousness (although these are of less significance given the protective purpose of the Tribunal's jurisdiction)

[61] See para [18] of these reasons.

For the reasons already explained, we have concluded that the respondent's commission of the offences constituted conduct which was wholly inconsistent with him being regarded as a fit and proper person to hold registration as a psychologist.
That finding supports the conclusion that the respondent cannot be permitted to practise as a psychologist for a period which continues for some years after his earliest possible date for release on parole.

Is a global penalty appropriate?

The respondent committed two offences, on two separate occasions, on consecutive days. However, the Board did not seek separate findings of professional misconduct for each of the offences. Rather, both of the offences were relied upon to constitute a basis for a finding of professional misconduct.
This is therefore not a case for the imposition of a global penalty, but rather the penalty imposed should be imposed only in respect of the one instance of professional misconduct (as a result of the commission of the offences) which was involved.
Accordingly, the penalty orders we will make will apply to the single finding of professional misconduct reflected in the Order.

Should the respondent be reprimanded?

It is arguable that a public reprimand is neither necessary nor appropriate in cases where other, more substantial, penalties are also imposed for professional misconduct, and which penalties leave no doubt as to the Tribunal's disapprobation of the practitioner's conduct.[62] However, it is common for a reprimand to be ordered even in such cases, as a public censure for the practitioner's conduct and a signal that the standards expected of health practitioners were not met by the practitioner.[63] That being the case, a reprimand is appropriate in this case, for the same reason.

Why cancellation of the respondent's registration is warranted

[62] Ebtash at [123] – [128].

[63] Cf, for example, Nadkarni at [7], [94]; Medical Board of Australia and Pepulani [2021] WASAT 128 at [90].

For the reasons already explained, we consider that the respondent's conduct is wholly inconsistent with him being regarded as a fit and proper person to practise as a psychologist. The factors to which we have referred above support the conclusion that the respondent will be unfit to practise for an indefinite period, but at the very least for many years into the future. It is not necessary to make a finding that the respondent is permanently unfit to practise.
Furthermore, even though we intend to cancel the respondent's registration, the National Law does not permit us to prevent him, permanently, from reapplying for registration. If we are of the view (as we are) that the respondent should be precluded from applying for registration, s 196(4)(a) effectively requires us to specify a period of disqualification for applying for registration.
Taking all of these matters into account, the fact that he is unfit to practice for an indefinite, but very lengthy period, supports the conclusion that the appropriate penalty in this case, for the protection of the public, is an order for the cancellation of his registration, and an order which precludes him applying for re-registration until some years after his earliest possible date for release on parole. In our view, that would ensure that, if the respondent is released from prison, and in the event (unlikely as it may be) that he applies for re-registration as a psychologist, the Board would be in a position to make an assessment of his fitness to practise, based on his circumstances at the relevant time.
The respondent was sentenced to two terms of imprisonment for life, with a minimum non-parole period of 34 years. That means his earliest possible date for release from prison on parole will be 12 April 2054.
We have taken into account the cases referred to by the Board in its submissions.[64] We consider that the respondent should be disqualified from reapplying for registration for 40 years, from today. That would mean he is disqualified from applying for registration until 14 September 2063, by which time the respondent will be 70 years old.

(h) The penalty which we will impose

[64] Medical Board of Australia v Holder [2021] SACAT 47; Nursing and Midwifery Board of Australia v Freeman [2020] SACAT 88; Medical Board of Australia v XOT [2023] VCAT 620; Chinese Medical Board of Australia v Zhou [2020] SACAT 23; Medical Board of Australia v Sze-Tho [2019] VCAT 244; Chiropractic Board of Australia v Oorloff [2019] VCAT 2010; HCCC v Buksh [2013] NSWNMT 22.

Taking all of these considerations into account, we are of the view that the following orders should be made by way of penalty:
(a)The respondent will be reprimanded for his conduct;
(b)The respondent's provisional registration as a psychologist will be cancelled; and
(c)The respondent will be disqualified from applying for registration as a registered health practitioner for 40 years, commencing today.
Our findings in relation to the respondent's fitness to practise as a psychologist apply equally to his fitness to provide any health service. Consequently, we consider it appropriate to make an order prohibiting the respondent from providing any health service for the entire period of that disqualification from reapplying for registration, namely:
(a)The respondent will be prohibited from providing any health service for a period of 40 years, commencing today.

The orders which should be made

Subject to hearing from counsel, we propose to make orders in the following terms:
1.Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law), the respondent has behaved in a way that constitutes professional misconduct, as defined in s 5 of the National Law, in that he engaged in the conduct in the circumstances found in para [18] of the Tribunal's reasons for decision dated 15 September 2023 (conduct) and that conduct was inconsistent with the respondent being a fit and proper person to hold registration in the profession of psychology.
2.Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded for the conduct.
3.Pursuant to s 196(2)(e) of the National Law, the respondent's provisional registration as a psychologist is cancelled.
4.Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for 40 years, commencing on 15 September 2023.
5.Pursuant to s 196(4)(b) of the National Law, the respondent is prohibited from providing any health service for a period of 40 years, commencing on 15 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
TH
Research Associate to the Honourable Justice Pritchard
18 SEPTEMBER 2023