Reyes v Dental Board of South Australia No. Scgrg-97-1534 Judgment No. S6516

[1998] SASC 6516

REYES  v  DENTAL BOARD OF SOUTH AUSTRALIA

Perry J

This is an appeal by a registered dentist against an order made by the Dental Professional Conduct Tribunal (“the Tribunal”) suspending his registration for a period of twelve calendar months from the date of the order, that is, 29 October 1997. The appeal is brought pursuant to s75 of the Dentists Act 1984 (“the Act”).

The Tribunal had before it a complaint laid by the Dental Board of South Australia (“the Board”) pursuant to s67(1) of the Act. This alleged that in the month of July 1996 the appellant was in practice as a dentist at an address at Henley Beach Road, Mile End, and that in the same month he employed a 16 year old girl, whom I will call “Miss B”, as a trainee dental assistant.

The complaint further alleged that on 15 July 1996, during the course of Miss B’s employment with him, the appellant indecently assaulted her.

The complaint asserted that on 24 March 1997 the appellant was convicted in the District Court of indecent assault.

Where a complaint has been laid under s67 of the Act, pursuant to subs(2) “the Tribunal shall inquire into the subject matter of the complaint”. The Tribunal which heard this case was presided over by a Magistrate and comprised two other members, a dentist and a lay person, the latter being a minister of religion.

Both the appellant and the complainant, that is, the Dental Board of South Australia, were represented by counsel at the hearing before the Tribunal. It does not appear that any oral evidence was called, but the complainant relied upon the enabling provisions of s72(8) of the Act to put relevant material before the Tribunal.

That section provides that in the course of any inquiry the Tribunal may receive in evidence a transcript of evidence taken in proceedings before a court or other body of the kind described.  It may then “draw any conclusions of fact from the evidence that it considers proper”, and further, in its discretion it may adopt any findings, decision, judgment or reasons for judgment of any such court or other body, as “may be relevant to the proceedings”.

Pursuant to s72(8) the Tribunal received a “certificate of record” of the District Court confirming the conviction of the appellant on the charge of indecent assault. It also had before it a copy of the information upon which the appellant was tried, which alleged rape (the verdict of indecent assault being an alternative verdict returned by the jury), the transcript of the examination and cross-examination of the appellant at the trial, and the sentencing remarks of Judge David.

Importantly, during the course of his sentencing remarks Judge David set out the factual basis upon which he sentenced the appellant.  This was accepted by the Tribunal as the factual basis upon which it came to deal with the complaint of unprofessional conduct.

In particular, Judge David said that the factual basis upon which he sentenced the appellant “is the version that you (the appellant) gave in evidence, namely that there was consensual kissing and touching between you and the victim”.

In the course of his evidence, the appellant explained that through the Commonwealth Employment Service he arranged to interview prospective trainees, and as a result agreed to engage Miss B.  The assault occurred during the third week of her employment.  Apparently there was some sort of argument between the appellant and Miss B as to whether she had attended the appellant’s surgery in the second week, during which the appellant was away on holiday with his family.  This altercation resulted in Miss B becoming tearful, after which she sat down in the appellant’s office and he put his arm around her, following which they started kissing each other.  His evidence was that she did nothing to discourage him, and indeed allowed him to touch her on her private parts.  She began touching him and eventually unzipped his trousers and fondled his penis.  At that stage, he says that he realised that the behaviour was inappropriate and broke off.

He denied ejaculating and denied her allegation that he had put his penis in her mouth.

In his sentencing remarks, Judge David made the following comments on the appellant’s actions:

“She was aged 16 at the time and she was your trainee employee.  The offence is a serious one of its type for two reasons.  First the victim was in your trust and you were much older, she being 16 and you 32.  Secondly, both generally and specifically at the time, she was very vulnerable.

She was one of those many young people desperately seeking a job and had been doing so for 12 months and on top of that you took advantage of her when she was in a peculiarly vulnerable position.

There was evidence before me which is not disputed that she was crying and was pouring her heart out to you and indeed confiding in you.  You should not have taken advantage of her in that state.  To do so in those circumstances makes this a serious offence of its type.”

Judge David imposed a sentence of imprisonment for a term of 18 months, with a non-parole period of 12 months.  He suspended the sentence of imprisonment upon the appellant’s entry into a 12 month good behaviour bond.

Judge David noted some significant mitigating factors.  These included the appellant’s previous good character (there were no prior convictions), and the fact that the appellant’s professional career would undoubtedly suffer as a result of his actions.  Judge David also noted that the appellant had admitted what he had done when giving evidence, and would probably have pleaded guilty to indecent assault if the charge against him had been limited to that.

Judge David concluded: “I am satisfied that nothing like this will happen again as far as you are concerned”.

When the matter came before the Dental Professional Conduct Tribunal, it was conceded by the appellant that the assault constituted unprofessional conduct.

The powers of the Tribunal, if satisfied that a complaint of unprofessional conduct is made out, are defined in s 67 of the Act as follows:

“(a).. it may, in the case of a registered person, exercise, by order, one or more of the following powers:

......... (i)     reprimand him; or

......... (ii)    order him to pay a fine not exceeding five thousand dollars; or

......... (iii)   impose conditions restricting his right to practice dentistry; or

......... (iv)   suspend his registration by removing his name from the appropriate register for a period not exceeding one year; or

......... (v) cancel his registration.”

In its reasons for decision delivered on 29 October 1997, the Tribunal stated that it was a serious offence, in which the appellant had made use of his greater age, maturity and professional status to manipulate a vulnerable young woman for his own gratification.  However, the Tribunal noted the respondent’s genuine remorse and contrition, the adverse affects of publicity on himself and his family, and the financial loss which would accrue if his right to practice were to be cancelled indefinitely.  The Tribunal also commented that the appellant’s actions did not constitute a continuing course of conduct, that he now appreciated the gravity of his actions, and that he was entitled to the benefit of his previous good character.

The decision of the Tribunal was that these factors mitigated against cancellation of registration, a course urged upon it by the Board.  But, given the gravity of the respondent’s conduct, and what it perceived to be the need for deterrence, it made the order suspending his registration for a period of 12 months.

The appellant, who argued the appeal in person, submitted that there were at least three grounds upon which the penalty should properly be regarded as excessive.

Firstly, as he put it, the penalty did not in fact contribute to the protection of the community, but was instead intended as a means of punishment.  Secondly, he submitted that the offence was not committed against a member of the public, but against an employee, and that this distinction had not been appreciated or fully taken into account by the Dental Tribunal.  His third argument was that the Dental Tribunal did not take into account the fact that he is under a 12 month good behaviour bond, which provides a strong incentive to avoid any further offences.

The appellant referred to a number of other decisions.

Richter v Walton[1] concerned an appeal by a medical practitioner against a 12 month suspension from practice imposed by the NSW Medical Tribunal as a result of sexual interference with a patient.  The NSW Court of Appeal considered the purpose of penalties imposed by professional disciplinary tribunals.  Kirby P and Priestley AJA observed:[2]

[1]   Unreported, 15 July 1993, File No CA40309/93.

[2]    Ibid at 7.

“In a case such as the present, punishment can be left to the application (if any) of the criminal law, to the consequences for the practitioner’s practice, to any civil action that may be taken, and to the shame of the publicity that has attended these proceedings.  Punishment is not the purpose of the [professional disciplinary] proceedings.  That purpose remains, from first to last .....  the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.”

Mr Stevens, counsel for the respondent, referred the Court to Rajagopalan v Medical Board of South Australia.[3]  In that case, after referring, with apparent approval, to the dictum which I have just cited from Richter v Walton (supra), Debelle J observed:[4]

[3]    Debelle J, 11 September 1997, Supreme Court of South Australia, unreported, judgment No S6363.

[4]    Ibid at 13.

“The Tribunal’s conclusion that the primary function of these disciplinary proceedings was not to punish the practitioner accords with settled authority ....  The protection of the public has a two-fold aspect.  First, it involves the protection of the public from the practitioner in question.  Secondly, it involves the protection of the public from other practitioners who might be minded to act in a like manner.  The position was expressed by Giles AJA in Law Society of NSW v Foreman[5] in these terms:

[5] (1994) 34 NSWLR 408 at 471.

‘But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them.  And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with’.”

I accept the principles referred to in those authorities.

Deterrence is commonly a concept germane to “punishment”, and the authorities make it clear that the role of a tribunal such as this does not encompass punishment.  But notwithstanding that, both specific and general deterrence may be significant elements in the disciplinary process, depending on the circumstances.

The appellant was born in Chile and is now aged 33 years.  He studied what he described in his evidence in the District Court as “medical science” at a university in Chile, and was employed as a medical scientist for a period in a hospital in that country.  He alleges that he was persecuted for his political beliefs and was eventually forced to leave Chile with his wife and daughter.  He migrated to Australia as a political refugee in 1988.  He then studied biochemistry at the University of Tasmania, from which he graduated with honours.  Following that he studied dentistry at the University of Adelaide.  He graduated in dentistry after a four year course, and then set up his own clinic in December 1995 at the address at which the offence occurred.

When he started, he had little capital and personally made or assembled most of the fittings in the clinic.  He set about establishing a practice, during the course of which he approached the Commonwealth Employment Service, who, as I have indicated, eventually arranged for him to employ Miss B as a trainee dental assistant.

The offence occurred before the appellant had established any substantial practice, and at a time when he was in straitened financial circumstances.

Not surprisingly, with the interference to his practice occasioned by the criminal trial and the subsequent hearing before the Tribunal, his financial position has worsened.  He might fairly be described now as being in a parlous financial position.

He put to the Tribunal, and repeated during the course of the hearing before me, the submission that a year’s suspension would effectively kill off any prospect he might have of re-building his practice.  That submission was not seriously challenged by Mr Stevens, although he submitted that the appellant did not have a substantial practice to start with.  But I understand the appellant’s submission to be that whatever the state of development of his practice before, a year’s suspension would effectively put an end to any prospect he might have had of building it up.  That must certainly be the case for the foreseeable future, particularly having regard to his financial position.

On the hearing of the appeal, the appellant called a witness to give character evidence.  This witness testified that she is currently employed as a full-time receptionist at the appellant’s dental clinic.  Like Miss B, she obtained this position through the Commonwealth Employment Service (“CES”).  The witness said that the CES has ongoing contact with her, and she has been instructed to contact the CES immediately if the appellant gave her cause to do so.  She added that the appellant has never done anything improper, that she is happy with her job, and would like it to be permanent.

In reaching a conclusion on the merits of this appeal, I am mindful that this Court will normally take a cautious approach in reviewing a decision of a specialist tribunal.  Certainly, if the appeal related to an area of professional practice, such as a complaint against a dentist’s professional techniques, I would be most reluctant to interfere with a decision of the Tribunal.

But the circumstances of the case before me are not unique to dental practitioners, and do not require any specialist dental knowledge to understand.

There is no doubt that in taking advantage of Miss B in the way that he did, the appellant committed a serious offence.  It would have been reprehensible enough if committed by an ordinary member of the public, but from a dental practitioner it unquestionably represented a violation of appropriate professional standards.

As counsel for the respondent pointed out, registration as a dental practitioner is a privilege, not a right.  The community expects that this privilege will be suspended or withdrawn from individuals who do not scrupulously abide by the standards of the profession.

Nevertheless, I note the significant mitigating factors which were referred to by Judge David and the Tribunal.  The offence was committed on the spur of the moment.  Judge David’s assessment was that “nothing like this will happen again” as far as the appellant is concerned.

There is hardly any need for me to dramatise the crushing effect which the criminal proceedings have had upon the appellant’s prospects as a dentist.  The trial was given much publicity in the press, some press cuttings having been put before me on the hearing of the appeal.  Furthermore, the appellant suffered the acute embarrassment of having to explain to his family and publicly give evidence of his conduct, which, as Judge David noted, he admitted when he gave evidence.

So far as the circumstances of the appellant’s conduct are concerned, when Judge David referred to the factual basis as the “consensual kissing and touching” between the appellant and Miss B, I think that a distinction needs to be drawn between his conduct and hers.  While no doubt her conduct in touching the appellant, and more particularly in exposing and fondling his penis, amount to circumstances of indecency which he should not have been party to, those actions did not amount to an assault by the appellant upon her.  Not only was she close to the age of consent, but those circumstances suggest that she was somewhat sexually precocious.

While it is true, as the appellant contended, that there is a distinction between conduct vis a vis an employee and conduct vis a vis a patient, the distinction cannot be driven too far, particularly in a matter concerning sexual misbehaviour.  A tendency to act improperly towards a member of staff might well be an indication that the person concerned might equally well, on some other occasion, be guilty of similarly objectionable behaviour towards a patient.

Be that as it may, given the view taken by Judge David that the appellant is unlikely to re-offend, this was not a case which called for the imposition of a disciplinary measure calculated to address any substantial need for specific deterrence.

So far as general deterrence is concerned, there is nothing to suggest that there was a high incidence of such behaviour on the part of dentists generally which called for a more severe disciplinary measure than otherwise might have been the case.

I accept that public confidence in the behaviour of dentists must be maintained, and that it is therefore appropriate that the disciplinary measure imposed be sufficient to dispel any suggestion that the matter is not regarded as serious.

The fact remains, however, that the suspension imposed by the Tribunal was for the maximum possible period,[6] and in the particular circumstances of this case, if allowed to stand, would have quite calamitous consequences for the appellant.

[6] See s67(3)(iv)

In all the circumstances, I have reached the view that the Tribunal failed to pay proper regard to the mitigating circumstances to which I have referred, and that the action taken by the Tribunal is so disproportionate as to warrant interference by this Court.

I would allow the appeal and vary the period of suspension of registration by substituting a period of three calendar months.

The operation of the order imposed by the Tribunal was suspended pending the determination of the appeal.

In those circumstances, I will hear counsel as to an appropriate commencing date for the varied period of suspension, and as to costs.