VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z513/2020
	
CATCHWORDS	
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 – nurse – conviction for importing, accessing, and distributing child pornography – agreement as to facts, characterisation of conduct as professional misconduct, and proposed determinations of reprimand, cancellation of registration, and prohibition for five years from employment in a health service where he would have access to or contact with children – findings of fact and of professional misconduct – determinations to reprimand, cancel registration and make prohibition order.      	

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Edgard Ramirez	
WHERE HELD	Melbourne	
BEFORE	J Billings, Senior Member 
M Archibald PSM, Member 
P Barry, Member	
HEARING TYPE	Hearing via video conference 	
DATE OF HEARING	4 March 2021	
DATE OF ORDER	12 March 2021 	
CITATION	Nursing and Midwifery Board of Australia v Ramirez (Review and Regulation) [2021] VCAT 211	
Order
1	Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 Edgard Ramirez is reprimanded.
2	Under section 196(2)(e) of the Health Practitioner Regulation National Law (Victoria) Act 2009 Edgard Ramirez’s registration as a health practitioner is cancelled.
3	Under section 196(4)(b) of the Health Practitioner Regulation National Law (Victoria) Act 2009 Edgard Ramirez is prohibited from engaging in employment in a position at any health service where he has access to or contact with any person under the age of 18, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, for a period of five years from the date of this order.

J Billings 
Senior Member 
	
M Archibald PSM
Member	
P Barry
Member 	

APPEARANCES:		
For Applicant 	Ms S Joosten of counsel	
For Respondent	In person 	

Reasons
1	The Nursing and Midwifery Board of Australia (the Board) has referred to the Tribunal allegations about the respondent registered nurse, Mr Edgard Ramirez, under s.193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law).  The referral was dated 26 June 2020.  The referral attached a Notice of Allegations which was later amended.   
2	Mr Ramirez is aged 33 years.  The allegations concern Mr Ramirez’s conviction last year for importing, accessing, and distributing child pornography.  The offending occurred from in 2017 to 2018 when Mr Ramirez was aged 29-31 years.  In November 2018, at Melbourne International Airport, the offending came to light when authorities conducted a baggage inspection and discovered material on Mr Ramirez’s mobile phone and iPad.   Mr Ramirez made admissions, was charged, and was released on bail.  Mr Ramirez ultimately pleaded guilty.  In February 2020 he was convicted in the County Court of Victoria.  He was sentenced to a total effective sentence of three years’ imprisonment with a minimum term of 21 months (one year and nine months) to be served before becoming eligible for release on his own recognisance.  Mr Ramirez was placed on the Sex Offenders Register for life.  
3	Further background to this proceeding appears in the Reasons for Sentence: DPP v Ramirez [2020] VCC 172.
4	Mr Ramirez is a national of the Republic of the Philippines.  He was born in that country and undertook his nursing training there.  He graduated in 2008.  He visited Australia for a few months as a tourist in 2016.  In 2017 Mr Ramirez obtained general registration in Australia as a registered nurse after completing the necessary bridging course.  He was granted a visa that enabled him to re-enter Australia, which he did in early 2018.  He then worked at a hospital in regional Victorian as a surgical nurse.  Mr Ramirez was granted permanent residency in Australia, but his visa has been cancelled as a result of his conviction and he expects to be deported once he has served his sentence.       
5	Mr Ramirez made a self-notification in December 2018.  In the notification he informed AHPRA in particular that he had been charged with an offence punishable by 12 months’ imprisonment or more and that his right to practice at a hospital or other relevant facility had been withdrawn as a result.   In April 2019 Mr Ramirez informed AHPRA in effect that he had not worked as a nurse since November 2018: his employer first suspended then later terminated his employment.   He further stated in effect that he no longer had a Working with Children Check.  
6	On 9 May 2019 the Board’s Immediate Action Committee (IAC) took immediate action to suspend Mr Ramirez’s registration.  
7	The parties have submitted an Agreed Summary of Facts, Findings and Proposed Determinations (Agreed Statement).  There is agreement with regard to the facts and the characterisation of Mr Ramirez’s conduct.  At first there was also agreement about proposed determinations - that Mr Ramirez be reprimanded; that his registration be cancelled; that he be disqualified for five years from applying for registration; and that he be prohibited for five years from engaging in employment in a position at any health service where he would have access to or contact with any child.  The proposal has been amended.  What is now proposed is that we make a prohibition order without also making a disqualification order: see further below.   
8	We set out the terms of the Amended Notice of Allegations immediately below.  We then record the admissions made by Mr Ramirez.  Next, we summarise the main points, including what appears in the Agreed Statement, and add important information that is contained in the evidence and submissions.  We then record our findings and determinations.   
AMENDED NOTICE OF ALLEGATIONS

That Mr Ramirez engaged in:

(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

and/or

(b)	unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law; 

in that, on or about 27 February 2020, Mr Ramirez was found guilty and convicted in the County Court of Victoria of one count of importing Tier 2 goods, one count of accessing child pornography material using a carriage service, and one count of distributing child pornography material outside of Australia.

PARTICULARS

(i)	At all material times, Mr Ramirez was a registered nurse;

(ii)	On 27 February 2020 (on case number CR 19-00910), Mr Ramirez was found guilty and convicted of three charges, specifically:

(A)	   one count of importing Tier 2 goods, namely child pornography, committed on 29 November 2018, contrary to section 233BA(5) of the Customs Act 1901 (Cth) in that:

(I) on 29 November 2018, Mr Ramirez was returning from the United States, where he had been since 28 October 2018;

(II) Mr Ramirez was subject to baggage examination by Australian Border Force officers upon arrival at Melbourne International Airport;

(III) Mr Ramirez’s mobile phone and Apple iPad were reviewed and found to contain child pornography images and videos; and

(IV) upon seizure and review, a total of 1,018 child pornography files were located as saved on Mr Ramirez’s phone and iPad.

(B)	   one count of accessing child pornography using carriage service, committed between 29 July 2017 and 27 October 2018, contrary to section 474.19(1) of the Criminal Code 1995 (Cth) in that:

(I) on 29 November 2018, Mr Ramirez was arrested by the Australian Federal Police and participated in a recorded interview;

(II) Mr Ramirez was found by investigators to have stored child pornography on the Cloud applications Box, MEGA and Dropbox on his iPad;

(III) investigators identified that Mr Ramirez had multiple different accounts on each platform, including 29 active accounts on MEGA,4 active accounts on Box and 3 active accounts on Dropbox;

(IV) the accounts contained a total of approximately 234,194 files, comprised of image and video files;

(V) a sample was analysed from each platform and a total of 5,050 child pornography files were identified;

(VI) access details for the accounts reveal the first account was created on 29 July 2017, on which date child pornography was added; and

(VII) numerous accounts were created, accessed and uploaded from 29 July 2017 until the date of Mr Ramirez’s arrest;

(C)	   one count of distributing child pornography material outside of Australia, committed between 9 November 2018 and 26 November 2018, contrary to section 273.5(1) of the Criminal Code 1995 (Cth) in that:

(I) upon analysing Mr Ramirez’s iPad and Kik account, investigators found chats in which Mr Ramirez engaged using the account name
[Xangel]

(II) during these chats, Mr Ramirez posed as a 12-13 year old girl and engaged in sexually explicit chat including sending child pornography images to other users;

(III) over a period ranging from 9 November 2018 and 26 November 2018, Mr Ramirez posed as ‘Angel’ and sent pornographic images to other users on a number of occasions; and

(IV) a total of approximately 40 chats were identified as including sexually explicit chats with Mr Ramirez posing as ‘Angel’ and him sending child pornography images to other users on approximately 75 occasions;

(iii)	The nature of the convictions do or may affect Mr Ramirez’s suitability to continue to practise the profession.

(iv)	Mr Ramirez’s conduct described in paragraph (B) above was inconsistent with the expectations of the profession of nursing as set out in the ‘Code of Professional Conduct for Nurses in Australia’ (in effect 7 May 2013 – 28 February 2018), which relevantly provides:

(A)	Conduct Statement 8 –

2 – … Nurses recognise that vulnerable people, including children, people with disabilities, people with mental illness and frail older people in the community, must be protected from sexual exploitation and physical harm.

(v) 	Mr Ramirez’s conduct described in paragraphs (A) and (C) above was inconsistent with the expectations of the profession of nursing as set out in the Board’s ‘Code of Professional Conduct for Nurses’ (in effect since 1 March 2018), which provides:

Principle 1 – Legal compliance

1.2 Lawful behaviour

Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must:
…
c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.
Admissions
9	Mr Ramirez admits that he engaged in the conduct particularised in the Amended Notice of Allegations and so failed to comply with the principles of Code of Professional Conduct for Nurses in Australia or the Code of Professional Conduct for Nurses (the Code) as particularised in the Notice.  
10	Mr Ramirez further admits that the conduct constitutes professional misconduct within the meaning of subparagraphs (a), (b) and (c) of the definition of professional misconduct in section 5 of the National Law.
Summary of allegations and admissions and further information 
11	In February 2020 Mr Ramirez, having pleaded guilty, was found guilty and convicted in the County Court of Victoria of one count of importing child pornography in November 2018; one count of accessing child pornography material using a carriage service between July 2017 and October 2018; and one count of distributing child pornography material outside of Australia in November 2018.  
12	In relation to the first count, Australian Border Force officials found more than 1,000 child pornography files containing videos and images on Mr Ramirez’s mobile phone and iPad when he entered Australia in November 2018 after spending a month in the United States (where he has relatives).  In relation to the second count, officers found that Mr Ramirez stored child pornography using numerous accounts on Cloud applications on his iPad.  The accounts contained more than 200,000 files comprising videos and images.  A sample showed more than 5,000 child pornography files.  In relation to the third count, investigators found chats in which Mr Ramirez posed as a 12-13 year old girl and engaged in sexually explicit communications, sending child pornography images to other users.  They identified approximately 40 chats where he posed in this way, and approximately 75 occasions on which he sent child pornography images to other users.  (In the criminal proceeding the Crown conceded that some of the images were duplicated.  It was also accepted that Mr Ramirez did not seek to profit from his activities).  
13	Mr Ramirez admits that he engaged in the alleged conduct.  We say more about the nature of the conduct when considering our determinations.  
Principles concerning the proper approach to an Agreed Statement
14	The principles concerning the proper approach for a tribunal to take to an Agreed Statement of the kind submitted in this case have been discussed in numerous decisions of courts and tribunals.  The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings and determinations are appropriate.  No agreement between a regulator and the practitioner can supplant that duty.  Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]-[21].  
15	The decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46 concerned an agreed civil penalty.  The penalty was pecuniary, but the majority judgment considered the principles broadly.  The Court made important observations about the public interest in promoting the resolution of cases by negotiation between a regulator and defendant, noting that it is to be expected that the regulator will be able to offer informed submissions about the agreement.
16	Referring specifically to pecuniary penalties, the Court made clear that the earlier cases it was considering do not suggest that the task of a tribunal is to determine whether the submitted penalty is wholly outside the range of penalties reasonably available.  They do not suggest, either, that a tribunal is bound by the figure suggested by the parties.  To the contrary, the tribunal is not bound.  A tribunal asks whether the proposal can be accepted as fixing an appropriate amount, and for that purpose the tribunal must satisfy itself that the submitted penalty is appropriate: see especially [46]-[48].
17	The Court went on to say in effect that, subject to a tribunal being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the proposed penalty is ”an appropriate remedy in the circumstances thus revealed”, it is consistent with principle and highly desirable in practice for the tribunal to accept the parties’ proposal and therefore impose the proposed penalty: at [58].  Earlier in the judgment the Court noted observations previously made about the “particular care” that should be taken - “when and if a poorly resourced respondent were party to a joint penalty submission” - to “scrutinise the submission and supporting statement of facts … to ensure, so far as possible, that the statement of facts was accurate and the contravener’s will had not been overborne”: at [31].  Whether the person is legally represented may be an important consideration: see Dental Board of Australia v Powell [2013] VCAT 999.
18	VCAT has observed that it is important to take the parties’ agreement into account in forming its own view on relevant matters, “particularly … when it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances”: Medical Board of Australia v Fox [2016] 408 at [6].  
19	We note that Mr Ramirez has not been legally represented in this proceeding, but in September 2020 he participated in a Compulsory Conference that was conducted by a senior member of VCAT.   
Findings of fact
20	The Board carries the burden of proof.  The standard of proof is the usual civil standard: on the balance of probabilities.  In the context of disciplinary proceedings where serious misconduct is alleged, the Court of Appeal has observed that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 “reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account”: see Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 at [26].  In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 the Court referred to Briginshaw before stating that it was entirely proper for VCAT to require that it be “comfortably satisfied” of the facts in issue: at [37].  See also Medical Board of Australia v Alkazali [2017] VCAT 39 at [33]-[36].
21	On the basis of the evidence contained in the Tribunal Book and, in particular, Mr Ramirez’s admissions, guilty plea and conviction, we are comfortably satisfied that Mr Ramirez engaged in the conduct alleged in the Amended Notice of Allegations.
Characterisation of conduct 
22	Section 5 of the National Law includes the following definition of “professional misconduct”.    
professional misconduct, of a registered health practitioner, includes—
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
23	(The definition of “unprofessional conduct” includes “the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession”).  
24	The Code, referred to in the Amended Notice of Allegations, is evidence of what constitutes appropriate professional conduct or practice for the nursing profession: see section 41 of the National Law.
25	In summary, the parts of the Code referred to in the Amended Notice of Allegations state that nurses recognise that vulnerable people, including children, must be protected from sexual exploitation and physical harm.  Further, nurses should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession.
26	We accept the Board’s submission that the following factors demonstrate that Mr Ramirez’s conduct (the conviction and the conduct that resulted in the conviction) falls within all three limbs of the definition of professional misconduct: the seriousness of his conduct; the fact that his conduct was not isolated (it took place over a period of 16 months during which Mr Ramirez said he viewed the material two-three times per month and regularly distributed it); the “reputational risk” to the profession (in this context counsel for the Board pointed to a media report about the offending that identified Mr Ramirez as a nurse); community expectations that professional standards and the law will be upheld by registered health practitioners; and standards of the profession (the conduct being “entirely inconsistent with the expectations of the profession of nursing”).  
27	On the basis of the findings of fact we have made, and also having regard to the parts of the Code referred to in the Amended Notice of Allegations, we consider that Mr Ramirez’s conduct was substantially below the relevant standard and that it was conduct that is inconsistent with him being a fit and proper person to hold registration.  We are satisfied that Mr Ramirez’s conduct constitutes professional misconduct within the meaning of subparagraphs (a), (b) and (c) of the definition of professional misconduct in section 5 of the National Law.  
Determinations
28	Mr Ramirez is self-represented.  He participated in a Compulsory Conference in September 2020 and signed the Agreed Statement later that month.  He appears otherwise not to have taken an active role in the proceeding.   Mr Ramirez informed the Board’s solicitors at about the time he signed the Agreed Statement that he did not have any written submissions or character references to include in the Tribunal Book.  He said that he just wanted the matter to be finalised because it was affecting his mental and emotional wellbeing.  On the day of hearing Mr Ramirez’s position was more or less the same, though he did respond openly if not expansively to questions we put to him that were directed to matters that we have to consider: see below.  
29	The parties propose that Mr Ramirez be reprimanded; that his registration be cancelled; and that he be prohibited for five years from engaging in employment in a position at any health service where he would have access to or contact with any child.  
30	We noted earlier that, initially, the parties proposed further that Mr Ramirez be disqualified from applying for registration for five years.  We say more about that below.  For now, we indicate that in the individual circumstances of this case, we consider that a prohibition order is sufficient.   As we next will discuss, however, it appears that Mr Ramirez will in any event be deported as soon as he completes his prison sentence.  
31	The sentencing judge noted Mr Ramirez’s intention to live in the Philippines with his (half) sister.  Mr Ramirez confirmed to us that he had received notification from immigration authorities not only that his (permanent) visa had been cancelled but also that it was intended that he would be deported once he had completed his prison sentence.  While counsel for the Board submitted that it would be speculative to say that Mr Ramirez would be “automatically” deported, it appears likely that Mr Ramirez will be deported.  Whatever the case, as we will discuss further, we consider that the proposed prohibition for five years is appropriate for the purposes of general deterrence if not specific deterrence.  
32	We also consider that even though Mr Ramirez has lost his Working with Children Check and been placed on the Sex Offenders Register, a prohibition in the terms sought would be an appropriate additional safeguard, given the wide range of health service settings in which Mr Ramirez could potentially seek employment in the future.  (Counsel for the Board acknowledged that the Board’s oversight of prohibition orders may be regarded as “reactive”, but she pointed out that there are very substantial penalties (a fine or imprisonment or both) under the National Law for health practitioners who would contravene a prohibition order: see section 196A).  
33	We now say something about the general approach we should adopt towards making our determinations.  The Board cited Medical Board and Australia v Jansz [2011] VCAT 1026 and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 VCAT 755.  It is convenient for us to refer to the general principles as they were expressed in Craig v Medical Practitioners Board [2011] SASC 169 at [41]:  
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
34	It is convenient next to refer to Medical Board of Australia v Griffiths [2017] VCAT 822 at [42]-[44], [46] where the principles were further discussed (footnotes omitted).   
42.	The purpose of determinations is protective not punitive. The objective is primarily the protection of the public and the maintenance of professional standards in the eyes of the public. 
43.	With that protective focus in mind, the Tribunal considers a range of factors including:
•	the nature and seriousness of the conduct;
•	whether the practitioner pleaded guilty or other evidence of contrition or remorse;
•	whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct);
•	whether there have been other disciplinary findings before or since the conduct in question;
•	evidence of character;
•	evidence of rehabilitation;
•	any delay from the time the investigation started to the end of the Tribunal hearing;
•	other mitigating factors such as medical or psychological evidence, family or other personal circumstances.
44.	Some of the above factors will overlap. Specific deterrence, for example, requires consideration of the likelihood of the practitioner re-offending, whether because of:
•	a lack of insight into what occurred;
•	a lack of remorse about what occurred;
•	a history of offending conduct as opposed to a one-off explicable departure from otherwise high standards of conduct; or
•	other matters indicating either that a particular sanction is required to deter the practitioner from re-offending or, conversely, that rehabilitation has taken place …
46.	General deterrence requires consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. 
35	It has not been suggested that Mr Ramirez engaged in criminal conduct in any professional workplace.  His conduct was nevertheless very serious, as is reflected in the maximum sentence for the offences and the actual sentence given.  In Nursing and Midwifery Board of Australia v Omant [2015] VCAT 1529, VCAT said this: “Accessing and possession of child pornography is reprehensible, involving a serious assault and invasion of the rights of children. In every case there is a child victim whose life may have been seriously and adversely affected, and whose human rights and privacy have been grossly violated”: at [12], [19].  In the present case the sentencing judge made these remarks to Mr Ramirez: 
It is well established that child pornography offences are considered especially grave by both the courts and the legislature and that is reflected in part by the high maximum penalty that is prescribed by Parliament. These types of offences facilitate the sexual abuse of innocent and vulnerable children.
They involve young children being subjected to degrading and humiliating conduct. By your actions, you are perpetuating the harm that is caused to those vulnerable children who are exploited to produce such material … 
The victims in the various images and videos, the subject of your charges, are not known. However, there is a public and paramount public interest in promoting the protection of children because children have been sexually abused in order to supply the market with the images that were contained within the videos and stills. On behalf of the community, I condemn your behaviour.
36	At this point we say more about the material that Mr Ramirez imported, accessed, and distributed.  We have read descriptions of the material.  The acts involving children were utterly cruel, depraved, and shocking.  According to the prosecution’s summary, the material depicted acts that included children involved in solo sex acts, sex acts between children, penetrative adult-child sex, sadism, bestiality, and other child abuse.  The children ranged from newborn babies to 15-year-olds.  Some children appeared to be under the influence of drugs or alcohol while others were crying or otherwise in apparent distress. 
37	The child pornography is described more fully in the Reasons for Sentence.  
38	A police statement indicates that Mr Ramirez told police that he first started accessing and downloading the material because he was curious but that later he received sexual gratification from the material.  The prosecution opening in the County Court included the information that Mr Ramirez said to police that he did not know the psychology of what was behind his offending.  He said he might have been abused as a child as well.  He also said he didn’t know whether that had happened or not.  (In contrast, Mr Ramirez said to us - as he told us he said to the psychologist who made an assessment for the Court - that he had been abused many times when he was aged about five years).  Mr Ramirez denied to police that he had ever had sex with a child, saying that he thought he would never do that.  He said he was really embarrassed and ashamed and that he knew that what he did was wrong.   
39	Mr Ramirez pleaded guilty at an early opportunity.  In fact, he made substantial admissions from the outset.  He provided passwords that enabled investigators to access his online accounts without difficulty.  He made the notification to the Board.  He has been generally cooperative with the police and the Board.  
40	The sentencing judge accepted that Mr Ramirez’s guilty plea was some evidence of remorse.  
41	We now consider further Mr Ramirez’s remorse and insight.  
42	The sentencing judge referred fairly extensively to an assessment by psychologist, Mr Patrick Newton.  (The assessment was evidently made in January 2020.  The report was not included in the Tribunal Book).  
43	The Reasons for Sentence indicate that Mr Newton formed the view that Mr Ramirez was an introverted and socially awkward man who tended to lead a very isolated life socially.  Mr Newton did not consider that Mr Ramirez’s personality traits were such to meet the criteria for personality disorder.
44	Mr Newton considered that Mr Ramirez had limited insight and demonstrated no awareness of the harm caused to the children shown in the material he accessed and that he seemed oblivious to the way in which his own conduct had contributed to the demand not only for the images but also for the abuse of the children in order to produce them.  Mr Newton assessed Mr Ramirez as having a moderate risk of repeat offending and said that the most important factor to reduce the risk of repeat offending would be for him to successfully complete a comprehensive offence-specific treatment.  That would reduce the risk over the medium term.  
45	The sentencing judge observed that, since he was charged, Mr Ramirez had been more open with his family and friends about his offending.  Her Honour was satisfied that he was (by February 2020) developing insight, that his insight was evolving, and that it needed to be further explored by way of treatment as suggested by Mr Newton.  She noted that Mr Ramirez had said he was willing to participate in programs to address his behaviour.  Her Honour considered that he had reasonable prospects for rehabilitation.  
46	Most unfortunately, the recommended treatment has never been provided to Mr Ramirez.  Mr Ramirez was unable to tell us why that would be.  He told us that he was willing to participate, but he had been notified that he was on a waiting list.  He could not tell us when he might be admitted to a program.  In the meantime, he said that in prison he had been involved in “community church” and consulted nurses for psychological support.  He told us that his psychological health had been seriously damaged by his experience.  (Mr Ramirez did not provide medical or other expert evidence about that).
47	Further on the subject of insight, counsel for the Board referred to Mr Ramirez’s statements to police in November 2018 that he told himself that in looking at the material there was “something that’s not legal” but he continued to look because there was “nothing wrong with just looking”.   
48	We took the opportunity to explore matters of insight, remorse, and risk with Mr Ramirez.  We did not find his responses to be reassuring.  Mr Ramirez maintained that his insight has developed since his offending was detected, but he spoke in only very general terms about the harm done to children and their families when persons like him became part of the demand for or supply of child pornography.   
49	In our view, there is a need both for specific deterrence and general deterrence.  Even if Mr Ramirez is to depart Australia in the foreseeable future, we intend that our determinations will deter him from reoffending.  But we also intend that our determinations will deter other nurses from such conduct, in the interests of maintaining professional standards and public confidence in the profession.
50	We have not been informed of any other disciplinary findings.
51	Concerning Mr Ramirez’s character, we note that he has no prior criminal history.  Mr Ramirez has not submitted character references.  There were references evidently provided to the Court by family members and friends who attested to Mr Ramirez’s commitment to his work as a nurse and who confirmed that, apart from his offending behaviour, he was regarded as a kind, caring, and compassionate man.  While his family and friends were devastated to learn about the charges, they still supported him.  (We mention that the Reasons for Sentence refer to Mr Ramirez as having “a complex family constellation”: he has one full sibling and a number of half-siblings - children his mother and father had with other partners.  His parents separated when he was an infant and he was cared for by his paternal grandmother.  He lived in poverty and experienced great hardship and insecurity.  After the age of 12 he went to live with an adult half-sister in Manila, but conditions remained difficult for him).
52	As the discussion so far indicates, there is limited evidence to date of rehabilitation.  At least in part that is because Mr Ramirez has not been offered treatment of the kind recommended for him.        
53	There has been delay since the Board’s investigation commenced in March 2019.  The criminal process that began in 2018 concluded in February 2020.  The Board referred the allegations to VCAT in mid-2020.  The hearing was initially scheduled in December 2020 but had to be adjourned because the prison was in lockdown on the day of hearing so that Mr Ramirez was unable to participate.  
54	We have considered Mr Ramirez’s personal history and what he told us about his mental state, but in the absence of medical, psychological or other expert evidence we are not satisfied that there are sufficient mitigating factors to materially affect the outcome of the case.
Reprimand
55	We reprimand Mr Ramirez.  In relation to the reprimand, we note that in Peeke v. The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) Marks J expressed the view that a reprimand is not a trivial penalty.  His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had a potential for serious adverse implications.
Cancellation
56	As noted in the Board’s submissions, cancellation constitutes a finding that the practitioner is currently not suitable for registration and must re-apply if he or she seeks to return to the profession.  We accept the submission to the effect that, combined with cancellation, prohibition for five years would be “a meaningful imposition” on Mr Ramirez’s capacity to work in relevant settings and would therefore be protective of the public. Such determinations would reflect the nature and seriousness of the conduct and convey to Mr Ramirez and the nursing profession at large the seriousness with which members of the profession must regard their legal obligations.  The proposed determinations would also reassure the community that nurses who fail to take their obligations seriously will be the subject of proportionate disciplinary action. 
Disqualification or prohibition or both? 
57	Section 196(4) of the National Law provides as follows: 
(4)	If the tribunal decides to cancel a person’s registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to –

(a)	disqualify the person from applying for registration as a registered health practitioner for a specified period; or 

(b)	prohibit the person, either permanently or for a stated period, from –

(i)	providing any health service or a specified health service; or

(ii)	using any title or a specified title.

58	The meaning of the word “or” between paragraphs (a) and (b) – whether it means “or”, or whether it can be taken to mean or include “and” - has been considered by VCAT and by tribunals in other Australian jurisdictions.  
59	We have noted that in the present case it was first proposed that, in addition to cancelling Mr Ramirez’s registration, we would not only disqualify him from applying for registration but also make a prohibition order, similar to determinations made in Nursing and Midwifery Board of Australia v Kumar [2019] VCAT 1099.  However, since VCAT’s decision in Nursing and Midwifery Board of Australia v Abdulkadir [2020] VCAT 1446 – where, in contrast to Kumar, VCAT considered that there could not be both a disqualification and a prohibition order - the proposal has been revised.  It is now proposed that we make a prohibition order only or, alternatively, that we make a disqualification order only.    
60	We clarified at the hearing that the Board did not submit that we would be wrong to make both a disqualification order and a prohibition order.  Rather, the Board submitted in effect that where the point of statutory interpretation has not been settled, the prohibition order was the preferred order.  
61	Prohibition is said by the Board to be the preferred order where Mr Ramirez’s intentions about his future practice are unknown; where there is presently “no barrier” to him obtaining employment in a health service following his period of incarceration (for example as a personal care assistant, disability support worker, aged care worker or similar), in circumstances where VCAT has no material before it that would permit it to find that he has addressed the issues underlying his offending behaviour; where Mr Ramirez poses a risk to users of health services, particularly young persons, if the issues underlying the referred conduct are not addressed; and where, as his conduct was not connected to his practice as a nurse, a prohibition order - being an order that affords greater protection to the public (and in particular, vulnerable young persons) than disqualification alone - is more likely to achieve the objectives and protective purposes of the National Law. 
62	(The Board made clear its submission that if we decided not to make a prohibition order we should instead make a disqualification order for the period of five years).
63	The present case is not the occasion to review the respective analyses in Kumar and Abdulkadir.  As a self-represented litigant, Mr Ramirez could not be expected to make helpful submissions on the legal point.  Given his migration status, there may be no practical consequence of making one order rather than the other.  We note also that a prohibition order would at least theoretically be less onerous than a prohibition order combined with a disqualification.  We consider that a prohibition order is the preferable determination in the particular circumstances of the case.
64	The Board submitted that prohibition for a period of five years from the date of the order would be appropriate having regard to determinations made in reasonably comparable cases.  The Board cited Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221; Nursing and Midwifery Board of Australia v Omant, cited earlier; Nursing and Midwifery Board of Australia v Hutchinson (No 2) [2018] VCAT 1705; and Heath Care Complaints Commission v Vincent [2012] NSWNMT 2.  These cases all involved child pornography in one way or another.  The circumstances varied as to the nature and degree of the offending and the severity of the criminal sanctions imposed.  In some cases, there was additional conduct to consider, such as substance abuse or a failure by the practitioner to notify the regulator of charges or convictions.  In some but not all of the cases there was evidence of the practitioner participating in a rehabilitation program.  The cases did not involve prohibition orders: most involved cancellation and disqualification.  Where disqualification was ordered in these cases, the periods ranged upwards to six years.  Generally, in relation to disqualification, allowance was made for the time the practitioner had already been out of practice.  For instance, in Omant VCAT took into account that the practitioner had been out of practice for five years and so considered that, for the protection of the public, it was not necessary to order a period of disqualification, though VCAT imposed relevant conditions on the practitioner’s registration.  And in Pang the disqualification period was five years, but effectively the time out of practice was more than six years.   
65	We consider that a prohibition order for the period of five years is appropriate, having regard to the time that Mr Ramirez has already been out of practice.  Had Mr Ramirez not already been out of practice for as long as he has been, we would have been minded to make a prohibition order for a substantially longer period of time.   
66	The form of order we will make is that Mr Ramirez is prohibited from engaging in employment in a position at any health service where he has access to or contact with any person under the age of 18, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, for five years from the date of this order.  (“Health service” is defined in the National Law to include, among other things, hospital services, mental health services, community health services, health education services, and welfare services relating to those services).
67	In summary, for the reasons we have given we consider that the appropriate determinations are that Mr Ramirez is reprimanded; that his registration as a health practitioner is cancelled; and that he is prohibited for five years from the date of our order from engaging in employment in a position at any health service where he has access to or contact with any child.

J Billings 
Senior Member 
	M Archibald PSM
Member	P Barry
Member