Veterinary Surgeons Investigating Committee v Temmingh
[2004] NSWADT 186
•08/27/2004
CITATION: Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186 DIVISION: General Division PARTIES: APPLICANT
Veterinary Surgeons Investigating Committee
RESPONDENT
Sven TemminghFILE NUMBER: 033341 HEARING DATES: 24/03/2004 & 28/06/2004 SUBMISSIONS CLOSED: 08/06/2004 DATE OF DECISION:
08/27/2004BEFORE: Hennessy N - Magistrate (Deputy President); Crisp T - Non Judicial Member; Clark F - Non Judicial Member APPLICATION: Veterinary surgeon - conviction of an offence - Veterinary Surgeons Act - veterinary surgeon - conviction of an offence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Customs Act 1901 (Cth)
Legal Profession Act 1987
Stock Medicines Act 1989
Veterinary Surgeons Act 1986CASES CITED: Director General NSW Agriculture v Temmingh— BC200301726
Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97)
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
The Law Society of New South Wales v Bannister (1993) LPDR 24
di Suvero v New South Wales Bar Association [2001] NSWADT 37
Clyne v New South Wales Bar Association (1960) 104 CLR 186REPRESENTATION: APPLICANT
M Wade, solicitor
RESPONDENT
P Ash, solicitor
M King, barristerORDERS: 1. The Tribunal orders that the name of Sven Arne Temmingh be removed from the register of veterinary surgeons. He may not apply for restoration of his name to the register for at least 5 years from the date this order comes into effect pursuant to s 36(6) of the Veterinary Surgeons Act 1986; 2. Dr Temmingh is to pay the costs of the applicant in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.
Introduction
1 In July 2003, Dr Temmingh, a veterinary surgeon, was convicted in the Supreme Court of wilfully supplying injectable steroids and wilfully making a false entry in a record. This is an application by the Veterinary Surgeons Investigating Committee (VSIC) pursuant to the Veterinary Surgeons Act 1987 (the Act) to discipline Dr Temmingh in relation to those convictions. Prior to the conclusion of the hearing, Dr Temmingh’s representative informed the Tribunal that his client had pleaded guilty to further criminal charges laid under s 233BAA(4) of the Customs Act 1901 (Cth). Those charges are that he imported approximately 5 kilograms of a restricted substance (nandrolone decanoate) from China in December 2003, six months after his first conviction in the Supreme Court. He has pleaded guilty to that charge and is due to be sentenced by the District Court on 10 September 2004.
Details of Supreme Court convictions
2 Dr Temmingh pleaded guilty to the following charges under the Stock Medicines Act 1989:
- The defendant did wilfully supply injectable steroids, contrary to the provisions of Cl 3A of an Order (Order 1998/1) made pursuant to s 46 of the Stock Medicines Act 1989.
The defendant did wilfully make a false entry in a record, contrary to the provisions of Cl 8C of an Order (Order 1998/1) made pursuant to s 46 of the Stock Medicines Act 1989.
3 The Supreme Court convicted Dr Temmingh and fined him $3,000 on the first count and $2,000 on the second count.
Jurisdiction
4 The Tribunal’s jurisdiction arises from the action the VSIC took in relation to the Certificate of Conviction it received from the Supreme Court on 5 August 2003. Pursuant to s 26(7) of the Act, the VSIC directed that the Certificate be deemed to be a complaint made to it under that Act. The VSIC notified Dr Temmingh of the complaint in a letter dated 7 August 2003. On 27 November 2003 the VSIC resolved that pursuant to s 28(1)(c) of the Act it was satisfied that a prima facie case had been made out and that it considered that the complaint was sufficiently serious to warrant its being referred to the Tribunal. The complaint was referred to the Tribunal on that basis. Dr Temmingh’s representative conceded that his client’s plea of guilty to the charges under the Customs Act 1901 (Cth) is a relevant matter for the Tribunal to consider when determining whether to make a disciplinary order and if so, what order it should make.
Legislation under which Dr Temmingh was convicted by the Supreme Court
5 The decision of the Supreme Court in Director General NSW Agriculture v Temmingh— BC200301726 conveniently sets out the relevant legislation at [2] to [7]:
- By s 46 the Stock Medicines Act , the Director General of the Department of Agriculture is empowered to make Orders concerning the supply or use of stock medicines. On 9 July 1998 the Director General made an Order, numbered 1998/1, concerning the supply and use of anabolic steroids. The Order was published in the NSW Government Gazette on 17 July 1998.
Cl3 of O1998/1 is relevantly in the following terms:
- “3. Supply, use and record keeping
The following prohibitions and regulations apply to injectable steroids:
A. Subject to cl3B(ii) and cl6, a veterinary surgeon must not prescribe the supply of, or supply, an injectable steroid to any person.”
Exceptions to the prohibition on the supply of steroids are contained in the two clauses mentioned in subclA. Pursuant to cl3B(ii) a veterinary surgeon may permit a person in his/her immediate presence to inject stock with an injectable steroid. This exception allows a veterinary surgeon to supply a steroid to an assistant to undertake the actual administration of the drug to the stock.
By cl6 a veterinary surgeon may dispose of an unwanted supply of injectable steroids by supplying it to another veterinary surgeon or returning it to the supplier, or otherwise dispose of it in a manner approved in writing by the relevant authorities.
Cl8 of the Order is, relevantly, in the following terms:
- “8. General Prohibition and Regulations in Respect of Record-keeping
In this clause, “record” means any record maintained pursuant to this Order.
A. ...
B. ...
C. A person must not make a false or misleading entry in a record.”
6 The Supreme Court’s decision sets out the facts of this case at [10] – [13], [17] and [20] to [27]:
- [10] The defendant is registered and practises in NSW as a veterinary surgeon. From about 1996 he was engaged by a company, Domeland Pty Ltd, which operated a large horse stud in the Hunter Valley of NSW, and which, in late 1997 or early 1998, began exporting horses to China. The Chinese operation was known as “Key Hinge Pty Ltd”. A trainer, Mr Kevin Connolly, who had managed the Domeland business, took up residence in China in early 2000, and assumed the management of that business. The defendant continued to be employed by Domeland. Domeland maintained records in relation to the horses. There were two groups of horses: those intended to remain in Australia, and those purchased for export to China. Each horse was given a number. The “China horses” had numbers beginning with the letter “K”
[11] The prosecutor alleged that on three separate occasions the defendant unlawfully supplied steroids; on 17 September 1999, on 4 November 1999, and in December 1999. According to the statement of facts, the first transaction occurred on 17 September 1999 on which date the defendant directed a veterinary wholesaler, Cenvet Pty Ltd, to send two parcels of steroids to China for use by Key Hinge. A total of 500 bottles, containing 17 litres of steroids, was involved in this transaction.
[12] Again taking the information from the agreed statement of facts, the second incident occurred in October 1999. On this occasion the defendant purchased from Cenvet 17.5 litres of steroids, which he himself packaged and posted to Key Hinge’s office in Hong Kong. The third incident occurred in December 1999 when the defendant travelled to China, carrying with him 16 litres of steroids which he there supplied to others.
[13] The value of the drugs was, in total, $35,404.
...
[17] Both parties agree, therefore, that, on one occasion, the defendant personally posted steroids to China, on another he caused steroids to be posted by Cenvet, and that on one occasion he transported steroids himself.
[20] The defendant maintained a treatment book purporting to disclose records of his treatment with injectable steroids of certain horses at the Domeland stud. These records showed the treatment of horses identified by numbers.
[21] Over a period spanning June to September 1999 the defendant’s treatment book records the administration of steroid treatments, on at least 106 occasions, to horses identified by numbers which did not conform to any horses present at the Domeland stud at the time stated in the treatment book. The records applicable to the period 1 January to 6 May 1999 are false in their entirety. There are 95 false entries during this period. There were, in fact, numerous instances of the making of false entries in the record which I do not propose here to detail. It is clear that the defendant’s practice in the maintenance of records was seriously deficient and consistently resulted in false entries.
[22] The defendant gave evidence about his steroid register. He said that prior to November 1998 he had not maintained any steroid register. He was visited in November 1998 by Mr Lee Cook, a veterinary surgeon attached to the Agricultural and Veterinary Chemicals Section of the Department of Agriculture. Mr Cook was accompanied by Mr Ian Anderson, an inspector with the Pharmaceutical Services Branch of the NSW Department of Health. The visit was part of a programme of inspection instituted by officers of the Departments of Health and Agriculture, intended to draw the attention of veterinarians to the requirements of O1998/1. Priority was given to visiting veterinarians who had been identified as having a greater than average use of steroids. The defendant was one of these.
[23] According to the statement of facts, the defendant undertook to put his records in order and to comply with his statutory obligations. On 16 December Mr Cook wrote a letter to the defendant confirming the details of the visit and the requirements of the Order.
[24] On 1 June 1999 Mr Anderson inspected the Domeland stud. He found no register of veterinary drugs used by the defendant. He therefore wrote to the defendant reminding him of his obligation. The defendant responded on 12 June, advising that he had a steroids register at Domeland which could be inspected by arrangement.
[25] In his evidence the defendant said that in November 1998 Messrs Cook and Anderson visited him, unannounced, at his home, wishing to question him about his use of anabolic steroids. They informed him of his obligation to maintain a steroids register. He said that he subsequently purchased a book to use as a steroid register, and proceeded to “recreate” his history of steroid use commencing July 1998. He did this by obtaining from Cenvet information about his steroid purchases, and, in the absence of any documentation of the use he had made of those steroids, he inserted into the book his own estimate of his stock on hand. He said that he had his own daily horse records, and from these he attempted a recreation of his steroid use. However, the defendant said that, although with sufficient time and effort, it would have been possible to have recreated a precise record of the steroids administered to the Domeland horses, he lacked the patience to undertake that exercise, and that the record he did create contained some (although relatively few) errors.
[26] He had not maintained any treatment records for the Key Hinge horses, and had no secondary documentation to use for this purpose. He therefore “fabricated” (the word used by the defendant) the records in the steroids register in relation to those horses. He frankly said that, since the horses were to be exported, he did not think the absence of records mattered, and that maintaining a steroids register was a waste of time. Even after the visit of Messrs Cook and Anderson in November 1998, the defendant failed to maintain any record of steroid usage in relation to the Key Hinge horses.
7 Dr Temmingh gave evidence to the Tribunal elaborating on these facts. He firstly apologised for his criminal conduct and said that it was never his intention to bring the veterinary profession into disrepute. He said that he had made serious errors but that they would not occur again because he has stopped dealing with injectable steroids and has taken steps to put his record keeping in order. In particular, he denied having ever imported anything, including steroids, from anywhere in the world. In view of Dr Temmingh’s subsequent plea of guilty to importing a restricted substance from China in December 2003, the representations Dr Temmingh made to the Tribunal about the level of his remorse and the changes to his practices were patently false.
8 Dr Temmingh said that prior to a visit by two government officials in November 1998, he did not know about the statutory requirements relating to the supply and recording of steroids. He acknowledged that one of the officials, Mr Cook, told him what his obligations were but admitted that the deficiencies in his record keeping and the total absence of any record keeping in relation to the horses bound for China, did not change following his visit. Dr Temmingh acknowledged that part of his academic training related to the importance of keeping accurate and up to date records of treatment. Given that he was an experienced practitioner we find that he knew it was important to keep accurate and complete records but chose not to do so. We do not accept his assertion that prior to the visit by government officials he was ignorant of the statutory requirements relating to the supply and recording of steroids.
9 Dr Temmingh understood that the purpose of the legislation was to minimise the risk of illegal steroid use among the human population. Dr Temmingh said that he did not believe that the legislation was necessary and he took the admittedly cynical view that it was being introduced to impress the international community prior to the Olympic Games being held in Sydney in 2000. His evidence was that he neglected to apply the legislation, rather than having contempt for it. He said he has been told since that the total amount of steroids being manufactured has not changed since 1998, so he still does not think that the statutory requirements are necessary. However, he said that he now complies with his legal obligations. Again, that assertion is patently false in view of his plea of guilty to the most recent charges.
10 Dr Temmingh explained that his practice was to inject each horse bound for China with a 10 ml dose of Stanazol every week. His purpose in doing so was to improve their condition and create a favourable impression in China. He admitted that he kept no records of these injections despite being told of his obligation to do so. His explanation was that Mr Cheng, the head of the Key Hinge operation, did not require him to do so and the horses were not racing in Australia. As conditions in China were harsh he was instructed to order further steroids to treat the animals once they had been exported to China. He visited China himself in September 1999 and administered steroids to horses.
11 In relation to a facsimile dated 14 September 1999 sent to Dr Temmingh by his supervisor Mr Connelly, Dr Temmingh said that Mr Connelly was requesting that he bring certain medications with him to China on his forthcoming visit. The list included Stanazol, an injectable anabolic steroid. Dr Temmingh’s explanation for this request was that there were virtually no western medicines in China and that the drugs were needed to treat the horses. Dr Temmingh purchased more steroids from Cenvet Pty Ltd in December 1999, to be sent to China at a later date.
12 Dr Temmingh said that he could see not see a problem in supplying medications, apart from steroids, to China. Those medications were part of treatments he was using on the horses before they left and they still needed those medications when in China. Even though Dr Temmingh did not prescribe a particular medication for a particular horse, he said the medications were part of the ongoing treatment of all the horses. In relation to the steroids that Dr Temmingh did not take to China himself, he said that he assumed that those steroids would be used on the same horses as he had injected in Australia. Dr Temmingh asserted that he would not engage in this practice today, given his criminal convictions. In hindsight, this comment was disingenuous given his plea of guilty to the most recent charges.
13 On 14 December 1999 Dr Temmingh’s employment with Domeland was terminated. He said that Mr Connolly told him that the reason for the termination was that Mr Cheng had found out that the horses were being treated with steroids in China and that fact may have jeopardised his chances of obtaining a horse racing licence. Dr Temmingh said that he purchased the steroids with his own money, in cash and was not fully reimbursed by his employer. Dr Temmingh said he did not sue his employer for the unpaid amounts but instead went to China and spoke to both Mr Connolly and Mr Cheng. He was never paid by either of these men. This evidence casts considerable doubt over the bona fides of Dr Temmingh’s activities in China.
Relevant circumstances since termination of employment with Domeland
14 Since December 1999, Dr Temmingh has been in private practice as a veterinarian and also owns a veterinary pathology business. He “inherited” that business from Domeland at the beginning of 1999 and re-named it Sydney Racing Laboratory. Dr Temmingh did not mention in his evidence in chief, nor when asked about his veterinary activities in cross-examination, anything about another business he owns with Dean McDowell. That business is known as Winning Edge Supplies Pty Ltd (Winning Edge).
15 According to Dr Temmingh, Winning Edge supplies horse and greyhound trainers with vitamins and other supplements. Mr Wade, for the applicant, put to Dr Temmingh that he had concealed that business from the Tribunal in an attempt to mislead the Tribunal about the extent of his involvement with drugs and other stock medicines. Dr Temmingh denied having that motivation and said that Winning Edge was merely part of his veterinary practice. We find that the implication suggested by Mr Wade is correct given that Dr Temmingh was asked direct questions about his business operations and failed to disclose his involvement with that business.
16 Supply of restricted substances. According to Dr Temmingh Winning Edge does not supply restricted substances under Schedule 4 (S 4) of the Poisons and Therapeutic Goods Regulation 2002 (the Regulation). That Regulation contains strict requirements as to the prescription, supply and recording of supply and administration of restricted substances. For example those substances may only be supplied by a medical practitioner, dentist or veterinary surgeon, or by a pharmacist on the written prescription of a medical practitioner, authorised nurse practitioner, dentist or veterinary surgeon. Winning Edge does not hold a licence or authority to supply any poisons or restricted substances.
17 Mr Wade showed Dr Temmingh an invoice from Winning Edge to a client in Geelong, Mr Wally Dommett itemising, among other things, frusemide, which Dr Temmingh agreed was a restricted substance. His explanation was that the inclusion of frusemide on the Winning Edge invoice was an accounting error and that it was inadvertently included on the Winning Edge invoice. Mr Wade then showed Dr Temmingh a second invoice on Winning Edge letterhead addressed to Bart Cummings which included Regumate Porcine, another restricted substance. Again, Dr Temmingh said this was an accounting error. Several other invoices addressed to Wally Dommett and to Bart Cummings recorded restricted substances being supplied by Winning Edge.
18 Dr Temmingh maintained that he personally saw all the horses for which he supplied medications whether the products were supplied through Winning Edge or through him in his capacity as a veterinary surgeon. The applicant summonsed further documentation and tendered several more invoices on Winning Edge letterhead listing frusemide and regumate porcine, both restricted substances. Given the systematic nature of the supply of restricted substances to more than one client over an extended period, we find that the inclusion of those substances on Winning Edge invoices were not accounting errors but a regular practice in which Dr Temmingh engaged.
19 Dealing in anabolic steroids. Since December 1999, Dr Temmingh said that he has voluntarily desisted from any dealings in injectable anabolic steroids. He said that he did so because the possibility of getting into trouble was so great that he has stopped using them. When asked about his veterinary practice, Dr Temmingh claimed that he avoids using steroids if he can. He said that the last time he dealt with anabolic steroids was in Queensland in 2003.
20 Record keeping. In relation to his record keeping Dr Temmingh said that in 2000 he was taking care of his own records and invoices but that since that time his wife has established a system that will provide for a complete record of all treatments and drug use. This system comprises MYOB software packages and a Microsoft Excel program. The Excel package is used to record the owner’s name, the horse’s name, the diagnosis and the treatment provided. It is used principally to produce invoices. Dr Temmingh says he keeps his progress notes in a diary and maintained that by cross-referencing his diary entries with the information in the Excel document, he has a complete record of the treatment he has given to every horse. He also maintained that the system ensures that he complies with the Code of Conduct (Schedule 1 to Veterinary Surgeons Regulation 1995) and all relevant legislation. He could not explain how the system ensured compliance with the Code of Conduct. He conceded that he did not have individual records for each animal he treated and that he did not record every medication or other product he prescribed or provided. He said while he kept records relating to Schedule 4 drugs, other products were not worth keeping records about because they had no bearing on the future health of the animal. Although Dr Temmingh insisted that his record keeping ensured that complied with record keeping requirements, we find that the systems themselves cannot perform that role.
Tribunal’s powers
21 Under s 32(1) of the Act the Tribunal must decide if “the matter of a complaint “ has been proved to our satisfaction. If so, we can go on to make any of the orders set out in s 32.
- (1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:
- (a) an order reprimanding or cautioning the veterinary surgeon,
(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,
(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,
(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,
(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,
(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.
- (a) because the matter of the complaint is of a trivial nature, or
(b) because of the circumstances in which that matter occurred, or
(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.
(4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person’s name to the register.
(5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon.
(6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.
22 Because the basis of the complaint referred to the Tribunal is Dr Temmingh’s conviction in the Supreme Court, it is not necessary for the Tribunal to make a finding about whether Dr Temmingh is guilty of misconduct, or serious misconduct, in a professional respect pursuant to section 26(1)(c) of the Act or whether, for example, he is not of good character pursuant to section 26(1)(e) of the Act. All the Tribunal needs to decide is:
- - whether the complaint has been proved to our satisfaction and, if so, whether there are other relevant matters that should be taken into account;
- whether a disciplinary order should be made; and
- if so, what that order should be.
23 We are satisfied that Dr Temmingh was convicted in the Supreme Court for wilfully supplying injectable steroids and wilfully making a false entry in a record. The details of those convictions are set out at [2] above. We also note that Dr Temmingh has agreed that his plea of guilty to the charges under the Customs Act 1901 (Cth) is a relevant matter to be considered by the Tribunal in determining whether to make a disciplinary order and, if so, the nature of that order.
Disciplinary orders
24 There is no doubt, given the seriousness of the complaint, that the Tribunal should make disciplinary orders of some kind. Beazley JA in Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97) conveniently set out many of the principles which govern disciplinary proceedings at [3]-[5]. These principles can be summarised as follows:
- - Disciplinary proceedings are concerned with the protection of the public.
- Protection of the public is not confined to protection against further misconduct by the practitioner, it incorporates a general deterrence from similar behaviour by other practitioners.
- The appropriate penalty will depend on the nature and extent of the improper conduct, the need for specific and general deterrence in order to maintain the high standards of the profession, whether the practitioner truly understands the error of his or her ways and whether the conduct in question is an isolated or passing departure from proper professional standards.
- The question of unfitness is not confined to a consideration of the conduct which is the subject of the disciplinary charge.
25 Financial loss and suffering. Although disciplinary proceedings are concerned with the protection of the public, Dr Temmingh maintained that he had suffered considerable financial loss as a result of his actions including legal costs and the payment of fines imposed by the Supreme Court. On the basis of these factors and the trauma Dr Temmingh says he has suffered as a result of the convictions, he submits that he has thoroughly paid any debt which he might have owed to the community in failing to act to the standard they might legitimately expect from a veterinary practitioner. The relevance of this kind of submission was addressed by Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 by Gleeson CJ, Meagher JA and Handley JA at 637 and 638:
- The Tribunal referred to the effect of the criminal and disciplinary proceedings on the doctor and their cost "in money and emotional stress". These matters would be highly relevant if the purpose of these proceedings was punitive, but their purpose is entirely protective. In Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202, the Court said:
- “... Although it is sometimes referred to as 'the penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.”
- “... The power of the Court to discipline a barrister is ... entirely protective and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”
26 For these reasons, we have not taken into account the financial hardships or other trauma Dr Temmingh may have suffered as a result of the convictions.
27 Nature and extent of the conduct. The conduct for which the Supreme Court convicted Dr Temmingh, relates directly to his practice as a veterinary surgeon. Before making the Order pursuant to which Dr Temmingh was convicted, the Director General must believe on reasonable grounds that the administration or application of a stock medicine or of each stock medicine of a particular class is likely to endanger the health of the public, consumers of food or produce derived from stock or persons administering or applying the stock medicine. (See Order 1998/1 made pursuant to s 46 of the Stock Medicines Act 1989.) In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638 Gleeson CJ Meagher JA and Handley JA stated that:
- The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
28 In our view it is a very serious matter for a veterinary surgeon to be convicted by the Supreme Court of wilfully supplying injectable steroids and wilfully making a false entry in a record. These convictions relate to areas that are strictly regulated because of the possible implications of injectable steroids being used for unlawful purposes. Dr Temmingh was able to supply injectable steroids because of the position of trust he held as a veterinary surgeon. He has abused that trust by failing to act in accordance with the regulations governing the supply of steroids and by wilfully making a false entry in a record. These are not trivial or accidental mistakes or omissions. They are matters of fundamental importance and concern. Their gravity is supported by the fact that a contravention of an order made under s 46 of the Stock Medicines Act 1989 is regarded as “serious misconduct in a professional respect” pursuant to s 22A of the Act.
29 Furthermore, the statement of facts supplied by Dr Temmingh’s representative in relation to the charges under the Customs Act 1901 (Cth) constitutes serious criminal conduct of a similar nature to that for which he was convicted by the Supreme Court. Dr Temmingh is unwilling to abide by appropriate professional standards even after he has been called to account for his previous criminal conduct. The Tribunal can have no confidence whatsoever that Dr Temmingh will abide by acceptable professional standards in the future or that he will not again engage in deception in an attempt to avoid the legal consequences of his actions.
30 Whether Dr Temmingh understands the error of his ways. Despite Dr Temmingh’s assurances to the Tribunal that although he had made serious errors, they would not occur again, Dr Temmingh has pleaded guilty to further offences involving the importation of a restricted substance. Clearly Dr Temmingh does not understand the error of his ways and his assurances to this Tribunal are not accepted.
31 Whether Dr Temmingh’s conduct was an isolated departure from professional standards. Similarly, given Dr Temmingh’s plea of guilty to further charges, the conduct for which he was convicted in the Supreme Court was not an isolated departure from professional standards.
32 Underlying qualities of character. Mr Colin McDowell gave evidence that he has known Dr Temmingh since 1978 excluding Dr Temmingh’s absence for approximately 10 years while living in the USA. Mr McDowell owns harness racing horses and Dr Temmingh is his veterinary surgeon. Mr McDowell described Dr Temmingh as an “absent minded professor” whose focus is on treating animals and not on the paper work or administrative requirements that accompany that treatment. According to Mr McDowell, Dr Temmingh’s wife had now taken over the record keeping and other administrative responsibilities. Mr McDowell agreed that he had no knowledge of the record keeping requirements of veterinarians or of the current record keeping practices of Dr Temmingh or his wife.
33 Mr McDowell expressed the view that Dr Temmingh was mortified by his convictions and full of remorse for his actions. According to Mr McDowell, Dr Temmingh has always conducted himself with the utmost integrity and has put the welfare of animals ahead of any monetary gain. Mr McDowell’s understanding was that Dr Temmingh had only been found guilty of failing to keep proper records. He was not aware that Dr Temmingh had another conviction for wilfully supplying steroids. He agreed in cross-examination that if he himself had fabricated records, he would not regard himself as professional. Given the most recent charges, Mr McDowell’s opinion that Dr Temmingh was full of remorse is mistaken. Mr McDowell disclosed that his son and Dr Temmingh had formed a partnership and were conducting a business of supplying vitamins and other supplements to treat horses. In later evidence the Tribunal was told that this business was called Winning Edge.
34 In The Law Society of New South Wales v Bannister 1993 LPDR 24 at 29 Sheller JA made a comment about the role of character evidence in disciplinary proceedings that has some bearing in the present case. His Honour said that “... absent some acceptable explanation of how greed and opportunity led the solicitor carefully to plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition.” Similarly, in this case, the character evidence from Mr McDowell is of little comfort to this Tribunal given Dr Temmingh’s carefully planned criminal conduct.
Conclusion
35 The seriousness of the matters for which Dr Temmingh was convicted in the Supreme Court, his conduct since that time and his further plea of guilty to charges of importing restricted substances, are so serious and involve such a significant departure from accepted standards of professional conduct that it is appropriate that his name be removed from the register of veterinary surgeons. In our view, he should not be permitted to re-apply for registration as a veterinary surgeon for at least five years.
Costs
36 The applicant applied for costs. Under s 32(1)(f) of the Act, once the Tribunal has found the complaint proved, it may make an “order requiring the veterinary surgeon to pay specified costs relating to the hearing.” The Appeal Panel dealt with the issue of costs in relation to disciplinary findings against a legal practitioner in di Suvero v New South Wales Bar Association [2001] NSWADT 37. The relevant provision is s 171E of the Legal Profession Act 1987 which, like s 32(1)(f) of the Act, gives the Tribunal discretion to make an order for costs where the legal practitioner has been found guilty of unsatisfactory professional conduct or professional misconduct. The Tribunal concluded at [26] that:
- If an informant in a professional discipline proceeding substantially succeeds there would in our view have to be quite exceptional circumstances to deprive the informant of a full costs order.
37 Given that there are no exceptional circumstances in this case and having regard to all the circumstances, we order Dr Temmingh to pay the applicant’s costs, in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.
Orders
- 1. The Tribunal orders that the name of Sven Arne Temmingh be removed from the register of veterinary surgeons. He may not apply for restoration of his name to the register for at least 5 years from the date this order comes into effect pursuant to s 36(6) of the Veterinary Surgeons Act 1986.
2. Dr Temmingh is to pay the costs of the applicant in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.
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