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[2021] VCC 1431
General information, not legal advice.
County Court of Victoria
2021-09-29
Mr P
Original judgment source is linked above.
Sentence: 24 months' imprisonment, released forthwith on recognisance of $3,000 to be of good behaviour for 36 months
For the Commonwealth Director of Public Prosecutions
1 Jenny Wing See Yu, you have pleaded guilty to an indictment charging you, in Charges 1 to 4, with offences of dishonestly obtaining a financial advantage by deception in the form of Medicare Australia rebates paid in relation to a total of 264 claims submitted between 2 August 2016 and 12 July 2018. Those claims resulted in a total of $144,812.20 being paid by the Commonwealth Department of Human Services into four bank accounts controlled by yourself.
2 You also pleaded guilty to Charge 5 on the same indictment, charging you with an offence of attempting to obtain a financial advantage by deception involving a single further false claim for a Medicare Australia rebate in the sum of $788.85 from the same Commonwealth department. That claim was rejected.
3 All of those offences were contrary to the Criminal Code (Cth) and you fall to be sentenced under the Commonwealth sentencing regime.
4 The maximum penalty for each offence is imprisonment for 10 years.
5 To avoid keeping you in unnecessary suspense until the conclusion of my sentencing remarks, I tell you now that I do not intend to impose sentences which would require you to serve immediate imprisonment.
6 The Crown tendered a six-page prosecution opening upon plea, a two-page chronology, a four-page comparative sentencing schedule and a 12-page Crown 'submissions on sentence' document.
7 At the conclusion of the plea hearing, the Crown undertook to redact some parts of the documents which revealed personal and bank account details which are not necessary for a satisfactory understanding of the relevant facts. I incorporate each of those four tendered documents with the redactions made by the Crown into these Reasons for Sentence.
8 Further information concerning the circumstances in which you first revealed your offending to your employer was provided by counsel for the Crown from relevant witness statements in the depositional material during oral submissions. The provision of that further information was in response to the written and oral submissions by your counsel to the effect that it was in your favour that you made a voluntary unprompted disclosure of your offending to your employer on 13 July 2016.
9 As I explain later in these reasons, I do not accept those submissions. In brief outline, the offending conduct arose in the course of your employment as a medical secretary by Dr Margaret Ann Ngu at the Transformational Medicine Australia practice in Warrigal Road, Burwood, Victoria. Your duties in that role included managing reception, making patient appointments, billing for medical services and dispensary items, and payroll.
10 Your employment by Dr Ngu commenced in May 2016 at about the same time you became a patient of Dr Ngu. You were enrolled with Medicare and had been assigned a Medicare card. On 26 May 2016, you received your first legitimate Medicare-eligible professional service from Dr Ngu. Medicare claims for services rendered to yourself by Dr Ngu was submitted in the same manner as for all other patients. That is, using the Medicare 'Easyclaim' channel with service details and benefits paid via the dedicated EFTPOS terminal used by the practice.
11 On 2 August 2016, your mother began receiving legitimate Medicare-eligible professional services from Dr Ngu. Neither your father nor your former husband ever received any legitimate Medicare-eligible services from Dr Ngu. However, between 2 August 2016 and 12 July 2018, you lodged a total of 265 fraudulent claims for Medicare rebates relating to a total of 438 services said to have been rendered by Dr Ngu variously to yourself, your mother, you father and your former husband. Of those claims, which are reflected in the five charges on the indictment, payments as I have indicated totalling $144,812.20 were made by the Commonwealth Department of Human Services for 434 of those 438 services into bank accounts controlled by yourself.
12 The Crown in my opinion accurately described your offending as 'an ongoing sustained and systematic defrauding of the Commonwealth' and that you used your position of employment to 'intentionally and systematically lodge false claims' which you knew you were not entitled to receive.
13 Your offending involved a breach of trust in that you took advantage of your privileged access to the system of claiming Medicare rebates which you operated on behalf of your employer. Your offending commenced within a few weeks of commencing your employment and persisted for about two years until 12 July 2018.
14 Your offending came to an end when, on that date, you received a telephone phone call at the practice from a senior investigator employed by the Commonwealth Department of Health asking to speak to Dr Ngu about Medicare claims. I am satisfied it is probable that this call alerted you to the likelihood that it was your offending which had prompted the call and motivated you to cease your offending and 'come clean' with Dr Ngu.
15 On 13 July, you contacted Dr Ngu and confessed your criminal conduct to her in detail. She in turn immediately passed that information to the senior investigator of the Department of Health who had called you on the previous day.
16 On 16 October 2018, you consented to participate in a recorded interview conducted under caution by the Department of Health investigators. In that interview, you made a full and frank confession of your offending and accepted that the total amount you had thereby fraudulently obtained was as alleged, namely, $144,812.20.
17 Indeed, at the conclusion of the interview you provided the investigators with a cheque in that sum made out in favour of the Department of Health. It is accepted by the Crown that you have thereby made full reparation in relation to your offending. There is no evidence that you spent any of the misappropriated funds. Indeed, there is no evidence before me as to what you did with it. The only hint comes from a report of one of the professionals where it was said that you had sold two investment properties in order to make reparation. However, I have not heard any more detail about that, or argument, so I do not make any adverse inference against you from that comment.
18 The chronologies helpfully tendered respectively by the Crown and by your counsel reveal that, despite considerable relevant detail and a full confession of your offending conduct having been provided respectively to Dr Ngu and by yourself on or about 16 October 2018, no charges were laid in relation to your offending conduct until you were charged on summons on 16 June 2020.
19 The Crown were not able to provide what I regard as anything approaching a satisfactory explanation for that delay. Indeed, even allowing for disruptions occasioned by the COVID-19 pandemic, this is a case which could, and in my opinion should, have been fast-tracked to a plea hearing in this court. As it is, you have had this matter hanging over your head with a reasonable expectation of severe punishment, possibly immediate incarceration, for more than three years.
20 Turning to matters personal to you, you are 43 years of age. You have no criminal history nor is there any subsequent criminal conduct alleged against you. Your counsel tendered a number of documents. I am not going to detail them or go through them in any detail but I will identify them:
21 I do not propose to refer to the content of the tendered documents in detail; however, I have read them very carefully and find them all helpful in determining the appropriate sentencing orders.
22 The report of Dr Sullivan dated 8 September 2021 is not only very recent but conveniently summarises much of your background and treatment history. Dr Sullivan also had the advantage of having access to each of the reports in the list I have just noted. He also referred to a report of a Dr Chan dated 10 October 2015 with which I have not been provided, but it seems that report is adequately summarised by Dr Sullivan in paragraph 40 of his report.
23 In summary, you were born in Australia to Chinese parents. You grew up in and around Melbourne. Your father worked long hours as a chef and your parents both ultimately devoted their time and energies to running a Chinese restaurant. You had an upbringing characterised by parental neglect and domestic violence.
24 Critically, you were also the subject of sexual abuse between the ages of six and 14, the details of which are well-documented in the reports to which I have referred. The fact of the sexual abuse was disclosed to staff at your school when you were aged 14, following which the Department of Human Services' Child Protection Services removed you from the family home and you were placed variously in foster care and shared accommodation.
25 Whilst the subject of child protection orders during your mid to late teens, you attended several schools. You had difficulty coping at school and left in Year 11. You began working as a waitress at age 14 and, it seems, have been industrious in pursuing training and employment opportunities throughout your adult life. You clearly have a strong work ethic.
26 In your 20s, you met and later married a man of Hong Kong-Chinese background. The marriage became strained after you unfortunately suffered several miscarriages and despite attempts at joint counselling, the marriage ended in 2018. It is apparent that the period of your offending followed and coincided with the gradual breakup of your marriage and the grief and trauma of multiple unsuccessful attempts to maintain a pregnancy to full term. Your husband has since returned to Hong Kong.
27 You currently live with your parents in Clarinda but you have been in a relationship with Bin Teo, one of your character referees, since 2019. In his reference letter dated 14 September 2020, he speaks of your remorse for your offending and your proactive efforts towards rehabilitation.
28 Unsurprisingly, your childhood experiences gave rise to emotional and psychological problems. Dr Sullivan identifies 'an established diagnosis of complex post-traumatic stress disorder'. He also points to your 'significant resilience' and to the fact that you have apparently developed a significant degree of calm and stability to the extent that your PTSD is in substantial remission.
29 I express the opinion that it is very much to your credit that when you were terminated from your employment and confessed your offending in 2018 you sought psychiatric and psychological diagnosis and treatment. The effect of doing so has enabled you to achieve what seems to be a marked improvement in your mental and emotional stability to a point where you have substantially rehabilitated yourself. You sought to understand the emotional triggers for your offending and to ensure that you do not offend again.
30 You have now put your experiences to good use through engagement in volunteer work and offering yourself as a spiritual coach and teacher. I think it is unlikely that you will offend again.
31 Turning to sentencing considerations, the Crown submissions on sentence are of considerable assistance in identifying the Commonwealth sentencing principles and relevant features of the legislative framework within which I must determine the appropriate sentence in the context of all relevant facts and circumstances. I do not propose to repeat the detail of those submissions in these reasons. Suffice to say that the offending constituted a serious breach of trust, was sustained over a period of almost two years and enabled you dishonestly to obtain a substantial sum of public money. You were not motivated by need or any apparent risk of financial stress which might explain your offending.
32 Offending of this nature places an unwarranted strain on the public purse and takes advantage of a system which is designed to make the claiming and payment of Medicare rebates as quick, efficient and user-friendly as reasonable prudence may dictate. Your conduct took advantage of, and tended to undermine, the public policy underpinning that system and the integrity of the system itself. Offences of this kind are prevalent and easy to commit.
33 You are entitled to substantial credit for your timely confession, your early indication of a plea of guilty and your cooperation with the Department of Health investigators. You also paid back all of the money that you misappropriated as soon as the quantum of your offending was identified with precision. That repayment alleviates what would otherwise have been an aggravating factor arising from an irretrievable loss to the Commonwealth.
34 I am satisfied you are genuinely remorseful. That is consistent with your offer to assist investigators by providing information concerning other alleged impropriety in the form of a statement dated 8 April 2021. As it transpired, although the Crown accepts that you were 'truthful and genuine' in seeking to assist, the content of the statement is of limited detail and value and is unlikely to lead to a criminal investigation. Nevertheless, I take it into account in your favour.
35 In the context of the COVID-19 pandemic, the utilitarian value and credit for your early plea is more pronounced than usual. I agree with the Crown submission that in all the circumstances, particularly giving proper value to the need for general deterrence, no sentence other than a sentence of imprisonment is appropriate. It was the Crown's submission that you should be sentenced to an immediate term of imprisonment 'pursuant to a recognizance release order rather than a non-parole period'.
36 The effect of that submission is that the appropriate sentence should in total aggregate no more than three years. Ordinarily, for offending on this scale committed over a period of almost two years I would regard an immediate custodial sentence with actual incarceration as the only appropriate sentence. However, as I have endeavoured to identify, there are many factors weighing in your favour not least of which is what I regard to be the inordinate delay in laying the charges against you. You are not to blame for that delay. Quite the reverse.
37 The silver lining for you is that by reason of the delay you have been able to progress if not entirely complete the recovery of your mental health and your rehabilitation.
38 Your counsel also submitted that a term of imprisonment with a recognizance release order is the appropriate sentence but that I should order your immediate release on recognizance. During the oral hearing, I asked counsel for the Crown in terms of whether the Crown submitted that a sentence of three years' imprisonment or less, with a recognizance release order permitting your immediate release would amount to sentencing error. The answer was to the effect that the Crown did not so submit. I note the wide range of sentencing orders made in cases referred to in the comparative sentencing schedule and the need as far as possible for consistency of sentencing and the need properly to satisfy the competing principles of and objectives of sentencing.
39 I propose to sentence you to a term of imprisonment which I intend to suspend by way of a Commonwealth recognizance release order. Before I make the order, I will explain to you the purpose and effect of the proposed recognizance release order, the consequences that may flow if you fail without reasonable excuse or cause to comply with the conditions of the proposed order and that any recognizance given in accordance with the order may be discharged or varied under the Act.
40 The purpose and effect of the recognizance order is to grant you conditional freedom from the commencement of the order. The condition is that you be of good behaviour for a period of three years. If you breach the recognizance order, that is, if you commit an offence punishable by imprisonment during that three-year period, you will be brought back before the court, and most likely before me, to be dealt with for that breach and to be resentenced. The recognizance order may be extended or revoked and you may be required to serve the remaining or the full term of the imprisonment that I am about to impose upon you. A breach could also mean that the sum of $3000 would be forfeited.
41 You should also bear in mind that having given your recognizance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge that order. No doubt your counsel, Mr Dunn, has explained to you the nature of the recognizance release order. Do you understand the nature of the recognizance order that I have just endeavoured to explain to you?
43 HIS HONOUR: Are you willing to enter into and be bound by an order in those terms?
45 HIS HONOUR: All right. Well, I will proceed to sentence.
46 Balancing all the relevant circumstances, I sentence you as follows.
47 On Charge 1, you are convicted and sentenced to 14 months' imprisonment. That sentence commences today.
48 On Charge 2, you are convicted and sentenced to 14 months' imprisonment. That sentence commences four months after the commencement of the sentence on Charge 1.
49 On Charge 3, you are convicted and sentenced to 14 months' imprisonment. That sentence commences eight months after the commencement of the sentence on Charge 1.
50 On Charge 4, you are convicted and sentenced to 12 months' imprisonment and that sentence commences 12 months after the commencement of the sentence on Charge 1.
51 On Charge 5, you are convicted and sentenced to one month's imprisonment. That sentence also commences 12 months after the commencement of the sentence on Charge 1.
52 So the total effective sentence of imprisonment I have imposed is imprisonment for two years.
53 I order that you be released forthwith under sub-s20(1)(b) of the Commonwealth Crimes Act 1940 upon you giving security by recognizance of $3000 to be of good behaviour for a period of three years from today.
54 Again, do you understand the terms of the order, Ms Yu?
56 HIS HONOUR: My associate will in a moment email a copy of the order to your instructing solicitor who I see is with you at present. And I am going to ask you to sign that order in his presence. He will then be able to remit that signed order back to me and I will sign the order. So that will take place in a moment.
57 Pursuant to s6AAA of the Victorian Sentencing Act 1991, I declare that but for your plea of guilty, the sentence that I would have imposed is a total effective sentence over all charges of three years' imprisonment with a recognizance release order to take effect after you had served 18 months' imprisonment of that three-year order. Is there anything else that I need to deal with, counsel?
59 MR DUNN: Not from our point of view. Thank you, Your Honour.
60 HIS HONOUR: All right. Well, I will now ask you when you receive it to sign the order, I think on the second page, and then it can be transmitted back to us and I will sign the order that you have signed.
61 MR DUNN: That will happen fairly quickly, Your Honour.
63 MR DUNN: Your Honour, will Your Honour stay on the Bench while that happens or will Your Honour ‑ ‑ ‑
64 HIS HONOUR: I do not think I need to stay any longer.
67 HIS HONOUR: I thank both counsel for their assistance. Have you received the order?
68 MR DUNN: It is now being printed. It will be there in a minute.
69 HIS HONOUR: All right, yes. I will leave the court.
DPP
Yu [2021] VCC 1431