Joseph v A Professional Conduct Committee

[2013] NZHC 1131

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-47 [2013] NZHC 1131

UNDER  The Health Practitioners Competence

Assurance Act 2003

IN THE MATTER OF     an appeal pursuant to s 106(2)(b) against orders of the New Zealand Health Practitioners Disciplinary Tribunal

BETWEEN  VIKRAM ABRAHAM JOSEPH Appellant

ANDA PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:         1 May 2013

Counsel:         A H Waalkens QC for Appellant

D La Hood for Respondent

Judgment:      17 May 2013

JUDGMENT OF RONALD YOUNG J

JOSEPH V A PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2013-485-47 [17 May 2013]

Introduction

[1]      Dr Joseph was sentenced to 300 hours community work in the District Court after he pleaded guilty to six charges of possession of objectionable material.1   The objectionable material was six videos of children between five and 14 years of age engaged in penetrative sexual conduct with other children and adults.

[2]      Arising from these convictions Dr Joseph was charged with and admitted conduct  which  reflected  adversely  on  his  fitness  to  practice  medicine.2     In December 2012 after hearing submissions and evidence, the Health Practitioners Disciplinary  Tribunal  suspended  the  appellant  from  practicing  medicine  for  12 months and imposed conditions which they said had the dual purpose of protecting the public and requiring rehabilitative effort by Dr Joseph.  These conditions would

commence after Dr Joseph resumed medical practice and continue for a period of two years.  Finally, Dr Joseph was ordered to pay 35 per cent of the costs overall of the prosecution (the prosecution and Tribunal costs).3

[3]      Dr Joseph’s case is that the Tribunal made an error of fact about the extent of his culpability.  This error led the Tribunal into imposing an unreasonable suspension and unreasonable conditions on Dr Joseph.   However, irrespective of the alleged error the suspension and some conditions were unreasonable.   Dr Joseph says the Tribunal was also wrong to require payment of 35 per cent of the costs given his personal circumstances.

Factual background

[4]      The facts which gave rise to the prosecution in the District Court and the disciplinary hearing before the Tribunal are found in a combination of the Police

summary of facts in the District Court; the evidence of Mr Stewart, a digital forensic

1      Films, Video and Publications Classification Act 1993, s 131A(1) .

2      See Health Practitioners Competence Assurance Act 2003, s 100(1)(c).

3      Dr Joseph’s share was erroneously calculated as $12,173, it should be $12,160.75.

analyst with the New Zealand Police Electronic Crime Laboratory; and counsel’s

submissions.

[5]      Dr Joseph’s offending came to light when a flatmate came upon material in Dr Joseph’s  computer  which  she  thought  contained  child  pornography.     She complained to the Police.  A search warrant was executed which led to electronic examination of the computer’s hard drive.  Six videos involving the exploitation of children and young people for sexual purposes were found.  They formed the basis of the charges in the District Court.

[6]      The  videos  were saved  in  various  folders  and  subfolders on  Dr Joseph’s

computer.    The  videos  ranged  in  length  from  very  short,  41 seconds,  to  over

24 minutes.   They involved both male and female children engaged in penetrative and oral sex with other children and adult males and adult females.   The children were five years to 13 years of age.

[7]      At sentencing the Judge noted Dr Joseph’s claim that he had “located the videos in question when you were looking for adult heterosexual porn”.  The Judge expressed some scepticism as to the “validity of that reason” given, as he said, the names of the videos clearly identified them as relating to children.

[8]      The Judge appeared to consider that an appropriate starting point for the offending was 12 months’ imprisonment.   In the circumstances given Dr Joseph’s plea of guilty, lack of previous convictions and a promising career, he imposed

300 hours community work and 12 months supervision, including a direction that he attend such counselling and other programmes as directed by the Probation Officer.

[9]      Dr Joseph was charged before the Tribunal that he had been convicted of an offence that reflected adversely on his fitness to practice.  He admitted that charge before hearing.   Prior to the hearing the prosecuting authority (the Professional Conduct Committee) made an application that Dr Joseph produce the full Police disclosure received by him arising from the District Court prosecution.   The application was based on the claim that the material sought would assist the Tribunal

in determining the truth or otherwise of Dr Joseph’s claim that he had downloaded the objectionable material inadvertently.

[10]     Dr Joseph  opposed  the  application  but  was  mostly  unsuccessful.     The Tribunal made an order that Dr Joseph produce to the PCC for examination, any documents in his possession relating to the Police investigation into the charges that were brought in the District Court which resulted in a conviction.  That provided the PCC with access to Mr Stewart, the Police digital forensic expert who had examined Dr Joseph’s computer.  I will return to his evidence shortly.

[11]     Dr Joseph did not directly file any sworn statements relating to the imposition of penalty by the Tribunal.  He relied upon an affidavit that he had filed in response to an application (by a Notice of Recommendation) by the PCC that pending the disposition of the charge before the Tribunal, he be suspended.

[12]     In that affidavit Dr Joseph primarily dealt with his personal circumstances and why it would be inappropriate and unfair to suspend him.   He made a brief mention of the facts which gave rise to the charge.  He said:

It most certainly is the case that I inadvertently downloaded images of the type in question and I was not sexually aroused by them.  Indeed, not all of the video material was viewed by me.

I most certainly and categorically reject any inference by the PCC or otherwise that I deliberately accessed child pornography. That said I accept I breached the law by being in possession of the images.

[13]     Dr Joseph  mentioned  that  Dr Boer,  a  psychologist  who  had  completed  a report on him had further detail of the circumstances under which Dr Joseph had the material.   Dr Boer’s report contained no independent verification of the facts but simply repeated what Dr Joseph had told him.   His report gave additional detail regarding the circumstances under which Dr Joseph claimed he had accessed the material.

[14]     As to Mr Stewart’s evidence, he completed a statement of evidence and in addition,  gave  oral  evidence  before  the  Tribunal  and  was  subject  to  cross examination.   His evidence related primarily to the question of whether there was

forensic  evidence from  Dr Joseph’s computer which would help the Tribunal in

assessing whether he had deliberately downloaded child pornography.

[15]     In his written brief, Mr Stewart said that the six videos in question, had been downloaded  using  either  a  LimeWire  or  FrostWire  file  sharing  application. Mr Stewart said that a user would search for files using a key word and  could download files from other users based also on key word search results.   The six videos were located in a default saved location on Dr Joseph’s computer.

[16]     In addition, Dr Joseph’s computer had a “BearShare” file sharing application. Mr Stewart had attached as Appendix 3 to his brief of evidence a screen shot of the BearShare search screen.  He said:

The screen shows the user entered search terms that had been automatically saved by the application.  Of note is the term “PTHC”.  In child pornography groups this term stands for “pre teen hard core”.

[17]     And further:

There is also a search term “mum son”.

[18]     Mr Stewart said that the search terms found (PTHC and others) were specific to the application.   They had been used for searching for content on the internet. Mr Stewart also produced Appendix 4.   This was a screen shot of the BearShare download  library  from  Dr Joseph’s  computer.    That  showed  that  some  of  the downloaded files had references to PTHC.  The BearShare downloaded library is, he said, a list of media that “has been played or viewed through this application”.

[19]     Further, some of the six videos, the subject of the criminal charges in the District Court, had in their title, the letters PTHC and others referred to “mum” or “mum and kids”.

[20]     Mr Stewart said that he could not determine what search terms had been used in either the LimeWire or FrostWire programmes.  He explained that the BearShare application saved a list of an individual’s search terms thus creating a history of what had been searched for.  And so the items “PTHC” and “mum and son” were part of the history of what had been searched for on Dr Joseph’s computer.

[21]     Mr Stewart then said in evidence:

Question:         Now you have told us that the videos that were pleaded guilty to that are listed in the summary of facts were in fact found using LimeWire and FrostWire?

Answer:         Correct.

Question:        Can you explain then how they show up on a shot relating to

BearShare?

Answer:          Essentially all it shows is that the BearShare application was used as a file viewer or movie player.   These applications generally come with built in players so they can be played with the application once they have been downloaded so essentially  what  it  means  is  that  these  files  were  played using the BearShare application.

[22]     In cross-examination Mr Stewart confirmed that he could not tell from his analysis of the computer whether the whole of any of the videos were played or whether they were only opened and looked at for a moment.

[23]     An issue arose before the Tribunal about naming conventions (the title) of videos and their reliability.  Mr Stewart was asked:

Question:        You   were   asked   a   specific   question   about   naming conventions and about reliability, in relation to “pre teen hard core”, that particular term, can you comment about that as a search term and its reliability for finding what you were looking for?

Answer:          Well, it is not an easy question to answer.  Sure people can download what they think could be pre teen stuff and turn out not to be or it could be the other way around, I mean it is not impossible but it is not something I can make a lot of comment on really but it can happen, yes.

What is the appellate test?

[24]     Before I return to the appeal grounds themselves, an issue arose between counsel as to the appropriate appellate test.  The jurisdiction for this appeal is found in s 106 of the Health Practitioners Competence Assurance Act 2003.  That provides as relevant:

106     Rights of appeal

...

(2)      A person may appeal to the High Court against the whole or any part of—

(a)      a finding under section 100 in respect of the person; or

(b)      an order made by the Tribunal under section 92(4) or section

101 in respect of the person; or

(c)       a decision made by the Tribunal on an application by the person under section 94; or

(d)       any order made by the Tribunal under section 95 in respect of the person or any decision to refuse to make such an order; or

(e)      a decision of the Tribunal on an application under section 99. (3)    A  person  (being  the  Director  of  Proceedings  or  a  professional

conduct  committee)  who  has  laid  a  charge  against  a  health

practitioner  may  appeal  to  the  High  Court  against  a  finding  or decision or order of the Tribunal that relates to the charge.

(4)      An appeal—

(a)       must be brought to the appropriate court by way of notice of appeal in accordance with rules of court; and

(b)       must be lodged within 20 working days after notice of the decision or order is communicated to the appellant, or within any further time a District Court Judge or, as the case requires, a High Court Judge allows on application made before or after the period expires.

[25]     Section 109 provides:

109     Procedure on appeal

(1)      An appeal under this Part must be heard as soon as is reasonably practicable after it is lodged.

(2)      An appeal under this Part is by way of rehearing. (3)        On hearing the appeal, the appropriate court—

(a)       may  confirm,  reverse,  or  modify  the  decision  or  order appealed against; and

(b)       may make any other decision or order that the person or body that made the decision or order appealed against could have made.

(4)      The court must not review—

(a)      any part of a decision or order not appealed against; or

(b)      any decision or order not appealed against at all.

[26]     The appellant’s case is that an appeal against the imposition of a penalty by the Tribunal requires a reconsideration by an appellate court of the conduct relied upon and the penalty anew.  This is what is meant by, in s 109(2), an appeal by way of rehearing. The appellant says that this is not an appeal from a discretion and that I must reach my own conclusion as to the appropriate penalty.  If it is different from the Tribunal’s then its penalty will be wrong.

[27]     The  respondent  says  the  imposition  of  a  penalty  under  the  Act  is  a discretionary  decision  by  the  Tribunal  and  the  limitations  on  appeals  from  a discretion apply.

[28]     The respondent accepts that there is one exception in this appeal from the assertion  that  this  is  an  appeal  from  a  discretion.    This  relates  to  the  alleged erroneous fact finding by the Tribunal.  The appellant and respondent are agreed that that aspect of the appeal is properly dealt with by me reconsidering the evidence and making up my own mind as to whether Dr Joseph had deliberately accessed child pornography.  I agree.

[29]     As to the proper approach to such appeals, there is a significant aspect of discretion when a Court or Tribunal is required by statute to impose a penalty for wrong doing.

[30]     The Court or Tribunal will need to identify the relevant facts; the relevant features of the personal circumstances; consider comparative cases and any other relevant factors.  It must balance all of these matters and finally reach a conclusion as to what is a fair and appropriate penalty.   In Roberts v A Professional Conduct

Committee of the Nursing Council of New Zealand,4 Collins J identified a number of factors which will inform such Tribunals in setting an appropriate penalty.5

[31]     The setting of a penalty (or the imposition of a criminal sanction) is not, as the PCC has said, a science, nor a mathematical calculation.   It involves a large portion  of  judgement  even  after  an  appropriate assessment  and  evaluation.   An analogy can be drawn with appeals against criminal sentences, although I recognise their differences.

[32]     In Austin, Nichols & Co Inc v Stichting Lodestar the Supreme Court ruled on the approach to general appeals:6

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

[33]     In Karim v Bashir the Supreme Court contrasted the Austin, Nichols approach to general appeals with the May v May7  approach applicable to appeals against discretion:8

...a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion.  In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.

[34]     In relation to distinguishing between the two classes of appeal, the Supreme

Court said:9

The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract.   But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.

4      Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.

5      See [63] for examples of relevant factors.

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

7      May v May (1982) 1 NZFLR 165 (CA).

8      Karim v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

[35]     In Roberts Collins J discussed whether an appeal against penalty imposed by a Professional Conduct Committee is an appeal against discretion.10    He concluded that:11

The process of evaluating penalty options and deciding what penalty to impose involved an exercise of discretion by the Tribunal in the same way that a decision about bail or name suppression also involves the exercise of discretion by judicial officers.  All involve the careful evaluation of options and the choosing of the most suitable option that is available.  In this respect, the Tribunal’s  penalty  decision  can  be  distinguished  from its  role  when interpreting the law, deciding facts and/or applying the law to established facts  when  determining  if  a  practitioner  has  committed  a  disciplinary offence.

[36]     I agree.  The approach I take in relation to an appeal against penalty with a disputed fact finding requires two stages of inquiry.  It involves both a general appeal against evidential findings, and an appeal against discretion as regards penalty.

[37] Given these propositions, the proper approach to an appeal against a Tribunal penalty is to ask whether the penalty imposed is within a reasonable range of penalties open to the Tribunal, given the factors identified in [30]. This approach requires the appellate Court to itself reconsider whether the Tribunal has properly assessed the facts, the relevant personal circumstances, similar cases and any other relevant factors. If it has and the penalty is within a reasonable range then it is within the legitimate discretion of the Tribunal.

[38]     Where there is an error in the Tribunal’s assessment, then the appellate Court will need to reconsider the penalty imposed and reach its own conclusion as to the

proper penalty.

10     Roberts, above n 4.

[39]     In summary, therefore, I consider the appropriate approach to such appeals is:

(a)      to assess whether the Tribunal has correctly identified the relevant facts and other factors relevant to penalty.   This requires a de novo assessment by the appellate court.  If the appellate court differs from the Tribunal’s assessment of relevant factors, then it may itself assess the proper penalty;

(b)      if the appellate court is satisfied the Tribunal’s assessment of relevant

factors is correct, then;

(c)      the appeal will only be allowed if the penalty is outside the range of penalties reasonably available to the Tribunal given the assessment undertaken.  This recognises a proper element of discretion exercised by the Tribunal in setting a penalty.

The appeal

Was this a case of inadvertent downloading of child pornography?

[40]     The Tribunal took the view that it could only adequately assess penalty if it understood  in  detail  the  circumstances  in  which  Dr Joseph  downloaded  the objectionable material. The Tribunal said:

111.      The Tribunal has drawn the clear conclusion that Dr Joseph did use his computer to download the files in question and, to the extent that these  were  opened  and  viewed,  apart  from those  viewed  by  his flatmate which led to the complaint to the authorities, that this was done by Dr Joseph.

112.     The Tribunal has also concluded that Dr Joseph was aware of the nature of these videos and that they included preteen hardcore porn or the like.  This is quite apparent from the description of the search terms to which Appendix 3 to Mr Stewart’s evidence refers.   It is also quite apparent from the description of the individual videos as outlined in the summary contained in Paragraph 19.

...

114.      The Tribunal not only shares that scepticism but forms the definitive view that there is no doubt that Dr Joseph knew the nature of the files that he was downloading and, to the extent that it is shown or has been conceded that he has viewed them, that he has so viewed. Although it was said on his behalf that the reference names for videos can be misleading and are not conclusive, the Tribunal is firmly of the view that the descriptive nature of the titles to the videos in question should have alerted Dr Joseph as to their content or likely content.

[41]     The appellant’s case is that these conclusions, especially in 112 and 114, were factual errors by the Tribunal.

[42]     The only evidence before the Tribunal from Dr Joseph as to how he came to be in possession of the videos is his affidavit.12    In that affidavit, Dr Joseph simply said that he “inadvertently downloaded images of the type in question”.   He “categorically” rejected any inference that he had deliberately accessed child pornography.  He provided no further information as to how the six videos came to be downloaded on his computer.

[43]     A  somewhat  more  detailed  explanation  seems  to  have  been  given  by Dr Joseph to Dr Boer.  He is a consulting and clinical forensic psychologist who had been asked by counsel for Dr Joseph to undertake a psychological assessment of Dr Joseph.  Dr Boer’s first report was for the District Court sentencing, his second for the Tribunal.

[44]     Under the heading of “Why did he (Dr Joseph) do this?”  Dr Boer provides a more detailed explanation from Dr Joseph as to the circumstances under which he downloaded the video material.

[45]     This is a highly unsatisfactory way of introducing relevant factual material before such a Tribunal.   If Dr Joseph wanted  the Tribunal to take into account significant  mitigating  features  of  the  facts,  then  he  should  have  presented  this material to the Tribunal by a sworn statement from himself on which, if the Tribunal

thought   appropriate,   Dr Joseph   could   be   challenged.      Dr Joseph’s   detailed

12 At [12].

explanation  in  Dr Boer’s  report  was  not  sworn  to  nor  was  it  subject  to  direct challenge.  The Tribunal was justified in giving Dr Joseph’s second hand explanation through  Dr Boer  little  weight.     Factual  information  known  only  to  a  health practitioner, the subject of disciplinary proceedings, should not be introduced to the Tribunal indirectly if the health practitioner expects weight to be given to an explanation.

[46]     In any event, Dr Boer, repeating Dr Joseph’s explanation, said:

1.Why did he (Dr Joseph) do this?   It appears that Dr Joseph began downloading child pornography while trying to find adult heterosexual pornography for masturbatory purposes.   He claimed that he downloaded child pornography accidentally initially and then carelessly (knowing the risks) after some time.   By way of explanation, he explained that the first time he downloaded child pornography was in the context of downloading adult “amateur” pornography.   Such amateur (or “homemade’) pornography videos were sometimes mislabelled, that is, sometime the file name did not accurately reflect the content and as a result he would check out files that had been given titles suggesting adult pornography, only to discover  the  files  were  in  fact  child  pornography.     He  also discovered that the opposite was occasionally true and so he sometimes opened child pornography files to see if they were child or adult in content.   He noted that the viewer cannot actually see what is in the file until it is downloaded and opened.  In this process, he downloaded “videos that clearly involved children”.   He noted that he sometimes eliminated the child material immediately and sometimes he neglected to do so.  However, he maintained that he never found the child material erotic, nor did he masturbate to such materials according to his self-report.

[47]     Dr Joseph’s  case  is  that  the  Tribunal  misunderstood  his  explanation  and

Mr Stewart’s evidence as to downloading and access the pornographic material.

[48]     Dr Joseph claimed that he had only been searching for adult pornography. He recognised that some pornography was mislabelled.   And so he had searched using terms related to child pornography on the basis that it might in fact be adult pornography.  He could not tell whether the downloaded videos were adult or child pornography until he viewed the videos.

[49]    As it turned out, some of the pornography with “child” titles which he downloaded and viewed were child pornography.   Dr Joseph insisted he did not intend to obtain child pornography.  It was the inadvertent result of his search.  It was

not that he downloaded  the video inadvertently, but that the video content was unexpectedly child pornography.

[50]     Thus, Dr Joseph complains that the Tribunal failed to distinguish between his downloading of the videos (in order to ascertain the contents) and whether he intentionally downloaded the content knowing it was child pornography.  Dr Joseph says there was ample evidence to support his claim that video titles are commonly mislabelled and that titles suggesting adult pornography can be child pornography and vice versa.

[51]     Dr Joseph said that the Tribunal’s acceptance of the fact that there was no evidence of a pattern of repeat viewing of the same files supported the proposition of inadvertent or unintentional downloading of the images.  If he had been interested in child pornography there would be a pattern of repeat viewing of these videos.

[52]     Further, Dr Joseph claimed that whatever the results produced from using the terms “PTHC” or “mum son”, they did not result in any videos or images in the appellant’s possession that were objectionable.  His mistake was in not deleting these videos.

[53]     I am satisfied that the Tribunal were correct in their analysis that whatever the process, Dr Joseph had tried to find videos with content described as “PTHC” and “mum and son”, amongst others.  He had, therefore, deliberately tried to obtain child pornography and his possession of such videos was as a result of those searches.  In doing so, I also reject Dr Joseph’s claim that he downloaded videos without knowing their content in order to ascertain whether they were adult pornography.  There is no doubt,  in  my  view  of  the  evidence,  that  Dr Joseph  deliberately  accessed  child pornography and intended to do so.

[54]     Dr Joseph’s claim that he searched using terms demoting child pornography to obtain adult pornography because some such material can be mislabelled simple defies commonsense.  I reject it as untrue.  The evidence did establish that from time to time, pornography will be mislabelled.  Dr Joseph would have been well aware that the possession of child pornography was illegal.  It is extraordinary to believe

that he would be prepared to risk being in possession of child pornography and risk committing a serious crime simply in the hope that he might find some adult pornography mislabelled as child pornography.  But if he did approach the matter in that way, then this would be an obvious situation where he would use the preview facility to check the “type” of pornography.  There is no suggestion that Dr Joseph did this.

[55]     Further, if Dr Joseph had no interest in child pornography it is difficult to understand why, whenever he discovered he had downloaded child pornography, he did not immediately delete it.  As it is, six videos of child pornography were stored in his computer.   As I have said he must have known that possession of child pornography was unlawful.   If he was inadvertently in possession of child pornography it is difficult to understand why he would not be especially careful about deletion.

[56]     But fundamentally, Dr Joseph had no explanation as to why he would search, in whatever context, for videos using the phrases “PTHC” and “mum and son”. Having discounted the argument that he was searching broadly to ascertain content, this  could  only be  an  attempt  to  either obtain  videos  or search  videos  for this material.  There is, as well, the remarkable coincidence that most of the six videos stored by Dr Joseph have the words “PTHC” or “mum and son” (or a variation thereof) on their file name.   Further, each of the videos themselves accurately reflected the file descriptions.  The descriptions make it clear that these videos are child pornography.

[57]     I agree with the Tribunal that the evidence clearly established that Dr Joseph intentionally accessed child pornography.  He did not inadvertently download child pornography nor did he “inadvertently” access child pornography.   The videos he possessed matched the very material he had tried to obtain.  The Tribunal made no factual error.

In any event was the suspension unreasonable?

[58]     The appellant’s case is that irrespective of any conclusion that I reach or the

Tribunal reached about inadvertence, the suspension was unreasonable.

[59]     Dr Joseph  says  that  the  evidence  called  from  two  psychologists  and  a psychiatrist, established that he was at low risk of reoffending in all respects but in particular of low risk of any “contact” offending against children.

[60]     The reports all noted the appellant’s genuine remorse, understanding of what he had done, and insight as to the effect of what he had done.    Dr Joseph says the Tribunal failed to give sufficient weight to this material.  There was neither purpose nor value in the suspension of Dr Joseph from practice given the absence of future risk.

[61]     Dr Joseph  submitted  the  Tribunal  were  wrong  to  criticise  him  for  not withdrawing from medical practice after he was apprehended for the possession of these images.  It was not obligatory for him to do so, nor was there anything in his circumstances that could have justified such withdrawal.

[62]     Dr Joseph says the Tribunal was also wrong when it concluded that he did not fully understand the severity of his situation and the impact that his behaviour had on his responsibilities as a medical practitioner and on the child victims.

[63]     The appellant says that the suspension imposed was a significantly greater penalty than more serious cases in New Zealand and significantly higher than in equivalent Australian  jurisdictions.    This  was  not  a  case  which  required  either individual or general professional deterrence as the Tribunal claimed.  Dr Joseph did not need to be personally deterred.   It was already clear it would he would not reoffend.  Given Tribunal records could only identify two other medical practitioners who had offended in this way there was no need for general deterrence.  Finally, the Tribunal was wrong when it said the suspension would not set Dr Joseph back in his career.

[64]     The appellant said that as an alternative if this Court felt the suspension was justified, then a suspended suspension was appropriate.   The order for suspension was going to have a dramatic effect on the appellant.

[65]     In Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand,13  Collins J set out a number of factors that he thought would be relevant to penalty before the Tribunal. They are:

1.The first consideration requires the Tribunal to assess the penalty that most appropriately protects the public;

2.The Tribunal must be mindful of the fact that it plays an important role in setting professional standards;

3.The penalties imposed by the Tribunal may have a punitive function, although protection of the public and setting professional standards are the most important factors;

4.Where   appropriate,   the   Tribunal   must   give   consideration   to rehabilitating health professionals;

5.The Tribunal should strive to ensure that any penalty it imposes is comparable to other penalties imposed in similar circumstances;

6.        The Tribunal must assess the health professional’s behaviour against

the spectrum of the sentencing options available;

7.The Tribunal should endeavour to impose the penalty that is the least restrictive that can reasonably be imposed in the circumstances;

8.The  Tribunal  must  assess  whether  the  penalty  imposed  is  fair, reasonable and proportionate in the circumstances.

[66]     I agree  that  the  factors  identified  by Collins J  are  relevant  in  setting  an appropriate penalty. These factors require some form of balancing.  Rehabilitation of the health professional is important but ensuring high professional standards and the protection of the public are to the fore.

[67]     I am satisfied that the Tribunal’s decision was within the range of reasonable

penalties open to it and was correct.

13     Roberts, above n 4, at [44]–[51].

[68]     As  to  the  protection  of  the  public,  the  Tribunal  appropriately  took  into account the evidence of the two psychologists and psychiatrist that Dr Joseph was at relatively low risk of any contact sexual offending.  Those assessments were based on the proposition that Dr Joseph had inadvertently accessed the child pornographic material.   When it became clear that may not be the case, Dr Boer was asked to reconsider his assessment of Dr Joseph.

[69]     Regretfully Dr Boer seems to have taken the attitude that the evidence of

Mr Stewart confirmed what Dr Joseph had said about inadvertent downloading:

... his downloading of child pornography appears to have occurred as part of his general downloading of adult-oriented pornography.

[70]     That is not correct.  Mr Stewart’s evidence, as I have previously explained, clearly established that Dr Joseph had used search acronyms and words to either download or view videos containing child pornographic material.

[71]     Dr Boer’s assessment that Dr Joseph was a low risk of contact offending against children was based on two propositions.   First, that Dr Joseph had no risk issues in common with sex offenders (e.g. no history of aggressive behaviour or of a antisocial personality disorder).   Irrespective of the deliberate download issue this aspect of the assessment of future risk supported Dr Joseph’s case.

[72]     The second proposition was that Dr Joseph’s awareness and insight into his offending was such that he was unlikely to offend further.  There is reason to doubt Dr Joseph’s awareness and insight given his failure to honestly acknowledge his intentional access of child pornography.  The Tribunal, therefore, were in my view correct to consider that penalties needed to be imposed to protect the public.

[73]     However, the research material provided by Dr Joseph’s counsel and other material supports the proposition that Dr Joseph is in a category of those who are unlikely to offend by sexual contact with children.  The research does not, however, say that such persons will not do so, but only that it is unlikely that they will do so.

[74]     The Tribunal’s conclusion, as is mine, is that Dr Joseph has not been truthful about his access to child pornography.   This inevitably raises concern about his

future vulnerability to child pornography, the efficacy of any treatment, and his professional standing.

[75]     It is not sufficient for Dr Joseph himself to say that he would never offend in such a way again and therefore no form of personal deterrence is required.  It would not be appropriate for that assurance to be taken at face value especially given Dr Joseph has been less than honest about the extent of his offending.  Dr Joseph’s failure to honestly acknowledge the extent of his involvement justified the need for personal  deterrence.    Dr Joseph  needed  to  have  it  made  clear  to  him  that  his offending was very serious and would be treated very seriously.

[76]     As to general deterrence, it is true, as counsel for the appellant emphasised, that such offending has been very rare within the medical profession.   Only two previous  convictions  and  subsequent  disciplinary  processes  have  been  reported. That does not mean that there is no need for general deterrence.  It may of course mean that the previous sentences, both of which involved suspensions, have had the desired effect.

[77]     The appellant submits that compared with two New Zealand cases where medical  practitioners  were  disciplined  for  possession  of  offensive  material  and similar Australian cases, Dr Joseph’s penalties were unreasonable (particularly the suspension).

[78]     The first New Zealand case is that of Dr Y.14     Dr Y was convicted in the District Court of 25 charges of possession of objectionable material and one charge of distributing objectionable material.   He was sentenced  to four months’ home detention.   Dr Y had in his possession some 290,000 files which had images of young girls in explicit sexual poses.  The material found on his computer fitted with the lowest level of sexual offending material.  The Tribunal referred to three other decisions  involving  male  nurses  who  had  come  before  the  Tribunal.    On  each

occasion the registration of the nurse was cancelled.

14     Re Dr Y HPDT Wellington 321/Med10/149P, 16 August 2010.

[79]     The Tribunal considered that a period of suspension of approximately two years would be appropriate and taking into account the time Dr Y had not been practising as a doctor prior to the hearing, suspended Dr Y from practice for a period of nine months.

[80]     Dr Dunkley15  pleaded guilty to six charges of possession of objectionable publications.   On his computer were well over 50,000 images of young girls in sexually explicit poses.  Dr Dunkley said he had been viewing such images for about

10 years.

[81]     The material viewed by the doctor appears to have been at the lowest level of seriousness.  The Judge considered that a notional starting point should be in the area of 10 to 12 months’ imprisonment.   Dr Dunkley had stopped practising upon his arrest and had decided not to continue practicing medicine.

[82]     In  Zhu  v  R,16   the  Court  of Appeal  considered  sentencing  levels  and  the classification, into levels of seriousness, of objectionable material.  The least serious category is static sexual poses of children (as in Dr Y and Dr Dunkley).  Apart from the category of sadism and bestiality, penetrative sexual activity between children and adults (the subject of the videos in Dr Joseph’s possession) was identified as being in the most serious category.

[83]     And so while the number of images possessed by Dr Joseph was considerably less than Dr Y or Dr Dunkley, the images themselves were in a far more serious category.  As to the sentencing decisions in the District Court, it is apparent that the Judges in all three cases (including Dr Joseph) thought a similar starting point of around 12 months’ imprisonment was appropriate.  It cannot, therefore, be said that the District Court Judges viewed the offending in Dr Y and Dr Dunkley as much more serious than the offending by Dr Joseph.  It is not correct, therefore, to claim that  Dr Joseph’s  suspension  period  was  out  of  proportion  to  the  other  two

New Zealand cases.

15     Re Dunkley HPDT Wellington 368/Med11/175P, 18 April 2011.

16     Zhu v R [2007] NZCA 470.

[84]     I agree with the Tribunal that it can be difficult to compare the Australian approach to this area.  New Zealand has developed its own penalty levels which to date have achieved a broad consistency and, in my view, a balanced and fair penalty regime.

[85]     Finally, the setting of professional standards.   There is no doubt that the imposition of a sentence of suspension gives the clearest message that the highest standards  of  behaviour  are  expected  from  medical  practitioners.     Dr Joseph’s conduct, accessing child pornography videos of the most serious kind  and then failing to  truthfully own  up,  is  a serious  failure to  keep  to  proper professional standards.  The penalty imposed by the Tribunal was entitled to reflect this serious failure.

[86]     I accept in saying this that the penalty will fall heavily on Dr Joseph.  He is a young man starting out in his medical career.  The penalty will also fall heavily on him in that he will be unable to earn an income as a medical practitioner during this time.  But in the end, in my view, the seriousness of the offending combined with the overall circumstances, justified the imposition of a suspension.

[87]     Counsel for the appellant invited me to consider suspending the suspension as an appropriate alternative penalty.  I do not consider that even if I had jurisdiction to suspend any suspension that it would be appropriate here. A clear need to protect the public, and set appropriate professional standards required a suspension that was active and felt by Dr Joseph.

Conditions and costs

[88]     In addition to the 12 months suspension, the Tribunal imposed the following conditions to apply upon his return to medical practice and thereafter for 24 months:

166.1That Dr Joseph has given an undertaking in writing to this Tribunal and to the Medical Council of New Zealand (“MCNZ”) by no later than 14 days after this decision is deemed to have been received by him, that he not access material, images or publications that are deemed objectionable under the Films, Videos and Publications Classification Act 1990.

166.2That  Dr Joseph  provide  to  the  MCNZ  evidence  that  he  has undertaken at his own cost and will, if necessary, thereafter (but not to extend beyond 4 February 2016) continue until completion, such clinical  psychologist  treatment  and  assistance  and  other rehabilitation   steps   as   are   required   by   the   SAFE   Network programme (or, if the MCNZ is satisfied that the alternative clinical psychologist treatment and assistance and rehabilitation steps recommended and undertaken by Dr Mei Williams is sufficient, then that treatment, assistance and those rehabilitation steps).   Those requirements  are  to  meet  Dr Joseph’s  psychological  needs  as identified by the matters to which the convictions in the District Court are this decision refer.

166.3That Dr Joseph comply with any conditions imposed by the Health Committee of the MCNZ, which may include at Dr Joseph’s cost psychological counselling, and/or a mentoring relationship with an appropriate specialist as approved by the MCNZ with regular meetings that assist in early identification of triggers as may be established in the SAFE Network programme individual relapse prevention plan or equivalent plan.

166.4That, on completion of the clinical psychological treatment and other rehabilitation steps, Dr Joseph provide at his own cost to the MCNZ a psychological assessment directed and approved by the MCNZ and that  that  assessment  satisfies  the  MCNZ that  Dr Joseph  is fit  to practise and that there are no issues of concern from matters to which this decision refers.

166.5Dr Joseph is to have at his cost professional supervision to monitor Dr Joseph’s health by a medical practitioner chosen by the MCNZ at periods  and  with  the  regularity  and  detail  of  supervision  and reporting to the MCNZ as is fixed by it.

166.6That if Dr Joseph is involved in training as a house officer or as a registrar,  in  each  clinical  service  attachment  he  will  have  an identified support person approved by the MCNZ who will be responsible for supervision while in the presence of any child under the age of 16 years provided that, in any case where Dr Joseph’s expertise is required for a specific patient over the age of 16 years where there are children present, the presence of the patient will suffice as supervision for those children.

166.7That if Dr Joseph examines or physically treats a patient under the age of 16 years of age he is to do so at his own cost in the presence of a chaperone who must remain present at all times during that examination or physical treatment.

166.8That  Dr Joseph  is  to  advise  any  future  employer  of  the  Court convictions, the findings of the Tribunal and these conditions.

[89]     Dr Joseph also had to pay a contribution of $12,173 toward the costs of prosecution  divided  between  the  prosecution  authority  and  the  Tribunal  being

35 per cent of their actual costs.

[90]     As to the conditions imposed by the Tribunal, the appellant submits they should  not  have ordered  him  to  attend  the  SAFE  Network Programme  (166.2). Given his suspension from practice, his financial situation and the cost of about

$17,000, he was not in a position to pay for this programme.

[91]     Conditions at 166.3 and 166.4 were unnecessary, Dr Joseph says.  It should be for the Health Committee of the Medical Council to assess his situation upon his return to the profession and decide what assurance and support was required.

[92]     The last three conditions, 166.5, 166.6 and 166.7 are, Dr Joseph says, already conditions that he is subject to at his work place.

[93]     Finally,  as  to  costs.    The  award  of  35 per cent  was  unreasonable  and excessive.  Dr Joseph was in a weak position financially.  Nor was it fair to take into account the interlocutory applications in setting contributions to costs given both sides have achieved something.

[94]     As to conditions 166.3 and 166.4 these require only compliance with the Health Committee’s directions and a provision of a report from a suitably qualified person that Dr Joseph is fit to return to work.  Both are appropriate and reasonable conditions.  Condition 166.3 provides some detail as to the supervision of Dr Joseph but the Tribunal observations are not mandatory requirements.

[95]    The last three conditions, 166.5 to 166.7 reflect the current supervisory arrangements between Dr Joseph and his employer.  These are reasonable and fair conditions and ensure continuity if Dr Joseph changes employment.

[96]     That  leaves  condition 166.2.     The  appellant’s  complaint  is  effectively threefold.  First, the psychological and psychiatric reports provided to the Tribunal and this Court, establish that there was no need for the appellant’s attendance at the SAFE programme or any other similar programme.   The risk of the appellant’s offending was low.

[97]     Secondly, if it was felt, however, that Dr Joseph needed to establish he was “safe” to practice medicine, then it should be left to the Medical Committee to satisfy  themselves  as  to  how  this  was  done  without  the  detail  required  by  the Tribunal.

[98]     Finally, given Dr Joseph’s very poor financial position, he cannot afford to pay for the course.  His poor financial position was explained to the Tribunal.

[99]     The rationale for condition 166.2 provided by the Tribunal cannot be faulted. The Tribunal was entitled to require Dr Joseph to reassure the public of his fitness to practice medicine by pointing to his completion of a credible programme dealing with child pornography.  This was especially so given the factual findings and given the concern about Dr Joseph’s preparedness to honestly and openly admit the full extent of his offending.

[100]  I note that this condition, in any event, provides for alternatives to the rehabilitative programme identified.  There is one factor, however, which I think is of legitimate concern raised by the appellant.  The cost of this programme, together with the award of costs made, totals almost $30,000.  Dr Joseph has few assets and given he will not work as a doctor for 12 months, modest prospects of a good income for that period.

[101]   The overall financial burden from the combination of the $30,000 effective penalty and the suspension of medical practice for 12 months seems to me unfair and disproportionate.  Neither the requirement to undertake a rehabilitative programme, nor the costs awards, can be seen as excessive in themselves.   But together I am satisfied they impose a disproportionate burden on Dr Joseph.

[102]   The rehabilitative programme in 166.2 is an important public assurance of safety.  It should be maintained.  However, to reflect the very high financial cost to Dr Joseph I am prepared to reduce the costs award made by the Tribunal from

35 per cent of the costs to five per cent.  This approach has no precedential value but simply reflects the particular facts of this case.

[103]   In summary, therefore:

(a)       the appeal against the suspension order is dismissed;

(b)if there is jurisdiction to suspend the suspension order, I refuse to do so;

(c)       the appeal against the conditions imposed on Dr Joseph is dismissed;

(d)the order for costs is quashed and instead there will be an order for payment of five per cent of the costs of the prosecution by Dr Joseph.

Ronald Young J

Solicitors:

A H Waalkens QC, Auckland, email:  [email protected]

D La Hood, Luke Cunningham & Clere, Wellington, email:  [email protected]