A reprimand is not just a slap over the wrist; the value of precedents in disciplinary sentencing

In Peeke v Medical Board of Victoria [1994] VicSC 7 at p. 6, Marks J commented in a judgment substituting a reprimand for the inferior tribunal’s 6 month suspension that a reprimand should not be regarded as a trivial penalty:

‘I have mentioned that the Board referred to a reprimand as trivialising a serious lapse in professional standards.  I am not able to agree with the Board that a reprimand is a trivial penalty.  It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has the potential for serious adverse implications.’

Sometimes the particular circumstances of the case will suggest that a finding of misconduct will suffice.  Sometimes a reprimand will be necessary.  Sometimes only a different penalty will be appropriate.  Sometimes a reprimand and a fine may be appropriate.  In truth, the fines, which seem to be the penalty of choice in most minor to mid-range disciplinary cases in Victoria, are not the main concern for most of my clients.  The publicity is the main concern, and these days, everything seems to be published on Austlii which is very different from disciplinary decisions less than a decade ago.  Often enough, a reprimand will be enough to express the profession’s denunciation of wrongful conduct accompanied as it is these days by publication on Austlii.  That was so even before the Austlii phenomenon.  In Peeke, Marks J said at p. 7:

‘the plaintiff is now 65 years of age.  His experience before the Board and here make it almost certain that there will be no repetition of that conduct which has brought him here and that in the future he will be very strict in his relationships with patients.’

The sentiment has been reiterated more recently in A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [62]; Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 at [52] (a tribunal of three presided over by Deputy President Dwyer); LSC v Moore [2010] VCAT 742 at [44] (Member Butcher); in LSC v Long [2011] VCAT 1164 at [24] (Deputy President Macnamara) and in LSC v Sapountzis [2010] VCAT 1124 (Member Butcher) as well as in a recent decision of VCAT which is yet to hit Austlii.

The proposition is usually now expressed as ‘a reprimand is not merely a slap over the wrist’, language which derives from the decision in Swieca at [52]:

‘A reprimand should not be considered a ‘slap over the wrist’ for Dr Swieca. In this regard, we adopt and endorse the views of Marks J in Peeke v Medical Board of Victoria [fn: at p. 6]. A reprimand certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner. A finding of professional misconduct, combined with the reprimand, is a serious form of censure and condemnation for Dr Swieca’s conduct.’

The Tribunal in Sapountzis determined to impose a reprimand in circumstances where a practitioner had failed for a long time to honour an undertaking to pay another practitioner’s costs in circumstances where the respondent had eventually paid up $8,500 in satisfaction of the undertaking which she would not recover from her client and a further $8,000 for advice and representation, including in the disciplinary hearing.

The Tribunal was right to take into account the costs of the prosecution: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] (Kirby J speaking for the Court) applied by analogy in LSC v Bechara [2009] NSWADT 313 (a tribunal of three presided over by Deputy President Haylen) at [15].

The financial effects of a penalty are relevant to its appropriateness, too: Burgess v McGarvie [2013] VSCA 142 at [67] per curiam.  I am as guilty of the next person of publishing posts predicated on the proposition that there is ‘a tariff’ for certain kinds of offences.  This kind of analysis can be too simplistic if the financial circumstances of the professional and the consequences of an alternative sanction are not known.  The fine which may be appropriate to a very wealthy practitioner ought to be very different from that given to an indigent practitioner.  So too ought suspension be more cautiously approached where the consequences would likely spell an end to a career, as is sometimes the case with sole practitioners.

In Buzzo Holdings Pty Ltd v Loison [2007] VSC 31, Kaye J said:

’26 I turn then to the question of the period of disqualification. The senior member correctly characterised Buzzo’s conduct as being so serious that it could not be tolerated, and that it was necessary, by his disposition, to send a clear and unambiguous message to the industry and to the community at large. No issue could be taken with those views. However, in determining the length of the period of the disqualification the senior member referred to his previous decision in the AMC Investment case and stated that the situation in the present case was “far worse” than that in the AMC Investment case. He noted that the incident of 3 February 2004, while isolated, could nonetheless have easily ended up in death, and referred to the failure of Buzzo to render any practical assistance to Scandolera after he had given him the drink. With those matters in mind he imposed the disqualification of nine years on Buzzo.

27 It is apparent from the foregoing that the senior member, in his reasons, relied significantly on the period of disqualification imposed in the AMC Investment case as providing a yardstick for the period of disqualification to be imposed in the present case. In my view, in doing so the senior member fell into error. First, if it was at all relevant to use a yardstick, then clearly the AMC Investment case was inappropriate for that purpose. Indeed it was noted by the senior member during discussion with counsel that the AMC Investment case involved a continued pattern of dishonesty by the licensee and the manager of the licensed premises over a period of two months. In his decision in that case the senior member had observed that that conduct involved selling stolen liquor from the licensed premises, and thus using the licensed premises for criminal purposes. On any view, the AMC Investment case was very different to the present case, and was an inappropriate case to use as any form of comparison with the case before the senior member.

28 However, and more importantly, it was in my view inappropriate and erroneous for the senior member to rely so significantly on the period of disqualification in another case in order to determine the appropriate period of disqualification in the instant case. What was relevant for the senior member was to tailor the period of disqualification to fulfil the objectives which he had correctly identified earlier in his reasons, namely, the protection of the public, the deterrence of Buzzo, the maintenance of industry standards, and the preservation of community confidence in the industry. Each case essentially depends on its own circumstances. The decision in the AMC Investment case would not inform or assist at all in determining how each of those objectives are to be fulfilled, when determining the period of disqualification in the instant case. In short, the AMC Investment case had little relevance to the exercise to be performed by the senior member, namely, determining, on the facts and circumstances of that case, the period of disqualification which was required for the purposes which he had already set out in his reasons.

29 The use of precedents in setting periods of disqualification is a concept more commonly used in criminal sentencing, than in determining the appropriate disposition by a tribunal exercising the protective jurisdiction contained in the Liquor Control Reform Act. Even in the field of sentencing the use of precedents has only a limited value.[12] However, in the present case it operated, in my view, to distract the senior member from the task which was before him. In doing so his reasons do not reveal that he appropriately gave weight, not only to the fact that the incident in question was isolated, but also to other matters including the length of time in which Buzzo had served in the industry without any prior incident, the steps taken by Buzzo since the incident to protect his customers from future abuse, and the effect of the criminal proceedings against Buzzo as a particular deterrent to him. The reasoning of the senior member does not reveal how he considered a nine year period of disqualification necessary in order to deter someone of Buzzo’s antecedents. It is true that earlier in his reasons the senior member had stated that common sense is something that is learnt over a long period of time. However that generalisation, if valid, could only be applied in determining the period of disqualification, by taking into account the particular circumstances of Buzzo himself. In addition, although it is difficult to assess what length of disqualification is necessary to maintain industry standards and public confidence, nonetheless the reasons by the senior member do not address that issue at all. On the contrary, as I stated, the senior member seems to have felt it necessary to measure the culpability of Buzzo by comparison to the culpability of the licensee and the manager in the AMC Investments case, and to extrapolate from that an appropriate period of disqualification. It is not evident to me, nor would it be to Buzzo, why it was necessary to disqualify him for such a lengthy period of time, in order to maintain industry standards and public confidence in the industry.’

See also Dental Practice Board of Victoria v Hassed [2006] VSC 485 at [45] – [46] per Hargrave J and Chiropractic Board of Australia v Hooper [2013] VCAT 1346 at 31 per a Tribunal of three presided over by Member Davis.

These principles in relation to the relevance of parity were drawn to my attention by a VCAT member in a recent case which will not appear on this blog because I do not blog my own cases.


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