Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Clemente [2024] NSWCATOD 56 Hearing dates: 22 April 2024 Date of orders: 01 May 2024 Decision date: 01 May 2024 Jurisdiction: Occupational Division Before: S Dunn, Senior Member S Jreige, Senior Member Dr S Schulz-Robinson, Senior Member F Taylor, General Member Decision: The Complaint against Mr Clemente is proved. Catchwords: HEALTH — professional registration and discipline — registered nurse — practitioner pleaded guilty and convicted of criminal offence Legislation Cited: Crimes Act 1900 (NSW), s 91K Health Practitioner Regulation National Law (NSW), s 144 (a), s 149C(1)(c), s 149C(5) Health Care Complaints Act 1993 (NSW), s 4 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sean Clemente (Respondent) Representation: Counsel: J Brook (Applicant) Solicitors: L Sutherland (Health Care Complaints Commission) (Applicant) Respondent (self-represented) File Number(s): 2024/00020013 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Sean Clemente, following a determination by the Director of Proceedings of the HCCC to prosecute a Complaint against him. Mr Clemente was registered as a nurse on 27 March 2020. His registration was suspended by the Nursing and Midwifery Council of NSW (Council) on 25 January 2023. 2. The Complaint against Mr Clemente is that pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law) he has been convicted of a criminal offence in NSW. 3. The HCCC bears the onus of proof of the Complaint. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. 4. If the Tribunal finds the Complaint against Mr Clemente to have been proved, the HCCC seeks an order pursuant to s 149C(1)(c) of the National Law cancelling Mr Clemente's registration with a non-review period of two years and an order under s 149C(5) prohibiting Mr Clemente from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed. 5. The hearing before the Tribunal on 22 April 2024 concerned "Stage One" only of the proceedings, namely whether the Particulars of the Complaint against Mr Clemente have been proved. "Stage Two" of the proceedings, which will deal with the issue of appropriate protective orders, will be the subject of a further hearing on 29 August 2024. 6. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Mr Clemente. Materials before the Tribunal 1. The HCCC relied upon a bundle of documents comprising 197 pages which was filed with the Tribunal on 4 April 2024 and a certificate issued by the Australian Health Practitioner Regulation Agency (AHPRA) filed with the Tribunal on 16 April 2024. 2. Mr Clemente relied upon his "Reply to application for disciplinary findings" document filed with the Tribunal on 5 April 2024. 3. Mr Clemente also gave some brief oral evidence. Complaint 1. The Complaint is that pursuant to s 144(a) of the National Law, Mr Clemente has been convicted of a criminal offence in NSW. 2. Section 144 of the National Law relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. The Particulars of the Complaint are: PARTICULARS OF COMPLAINT ONE 1. On 9 May 2023, at Burwood Local Court, the practitioner was convicted of the offence film person in private act without consent to obtain sexual arousal between 1 September 2022 and 8 January 2023 at Macquarie Park contrary to s91(K)(1) Crimes Act 1900 [H78181585, Sequence 1]. 1. In his reply document Mr Clemente said: I do not deny, and I have admitted to my wrongdoing to everyone including to the local court and to the magistrate. 1. In evidence before the Tribunal are copies of a certificate of conviction from the Local Court of New South Wales at Burwood dated 25 May 2023 with respect to the offence together with the Facts Sheet which was before the Sentencing Magistrate and the Magistrate's Sentencing Remarks. The Facts Sheet sets out the underlying facts of the offence. These documents establish that Mr Clemente entered a plea of guilty to the offence film person in private act without consent and was convicted of the offence on 9 May 2023. 2. We find that the evidence put forward by the HCCC proves the allegations in Complaint One on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegations. Stage Two Hearing 1. Orders were made for the filing and service of evidence the parties propose to rely upon at the Stage Two hearing and as indicated above, the proceedings are listed on 29 August 2024 for a Stage Two hearing as to the appropriate protective orders to be made. 2. For the reasons we explained in the hearing, Mr Clemente is encouraged to seek legal advice about the material he should seek to place before the Tribunal at the Stage Two hearing. Orders 1. The Complaint against Mr Clemente is proved. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2024