[2010] NSWCCA 194
Hili and Jones v The Queen (2010) 242 CLR 520
[2010] HCA 45
Munda v Western Australia (2013) 249 CLR 600
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
Hili and Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
Munda v Western Australia (2013) 249 CLR 600
Judgment (2 paragraphs)
[1]
Judgment
Ms Inia, my practice is to tell people in advance what sentence is to be imposed. In your case, I propose to sentence you to a term of imprisonment of two years and nine months so it represents a 25% discount on the otherwise appropriate sentence, and I propose to a fix a minimum term of ten months. This will mean that you will be eligible to be released on a recognisance to be of good behaviour for three years on 8 March 2020. I will give my reasons now.
The prisoner, Talaiha Inia appears today for sentence in relation to a charge to which she pleaded guilty in the District Court that alleged that between 24 April 2008 and 6 February 2014 at Sydney and elsewhere in the State of New South Wales, she did by deception dishonestly obtain a financial advantage, namely Medicare benefits in the names of Talaiha Inia, Teoura Key, and Sam Inia from another person, namely the Commonwealth, which is a Commonwealth entity.
I would have thought, with the greatest of respect to the drafter of that charge, that the Commonwealth must of necessity be a Commonwealth entity. Whether there is an error in that charge, I do not know.
This is a charge contrary to s 134.2(1) Criminal Code (Cth) 1995 and carries a maximum penalty of ten years' imprisonment and/or a pecuniary penalty of $66,000.
Whilst the prisoner pleaded guilty at the District Court to that charge, she in fact had been committed for sentence to the District Court from the Local Court after some delay, which I will come to shortly. I have information that it was either 90 or 92 separate charges on Court Attendance Notices and sensibly all those matters have, after committal for sentence, been rounded up into the one charge.
The prisoner has been in custody, I am informed, since 9 May 2019. She had been on bail from the time of her arrest, but apparently, in circumstances I need not dwell upon because I do not have all the information, the Crown made a detention application in early May or late April and that was granted on 9 May 2019. So any order of imprisonment will commence from that date. I will come back to the detail of her criminal history and other matters such as offences committed on bail and the like, in due course.
I have a detailed statement of facts with some schedules and there is no need for me to reiterate all that detail except to, by way of introduction as the first page of the statement of facts outlines, point out that there are mechanisms by which Medicare benefits may be paid to individuals in respect of medical procedures and consultations and the statement of facts notes that a person who is enrolled - expressed with the "Medicare Program" and who has paid for a medical service rendered can claim against the program and receive a medical benefit.
The facts set out a number of ways in which such claims can be made and I need not set those out. The essence of what is alleged against the prisoner is that by reason of the character of her occupation she was able to make claims for claimed medical consultations and procedures that were, in fact, fictitious.
She was issued with a Medicare card and recorded on that card, as is commonly the case with parents, were her daughter, Teoura Key, who was born in May 1994, her daughter from, as I understand it, a previous relationship, her current partner Sam Inia who was added to her Medicare card on 26 November 2007 and twin boys of that relationship, Noah and Ezekiel, who as I understand it, were born in April 2009 and thus at this time are ten years of age.
In February of 2014 the offender's Medicare card came under scrutiny in respect of particular benefits paid for particular neurological procedure items claimed for her and her daughter. The irony of that is at the time in 2014 the prisoner had no neurological illnesses requiring treatment but since that time, particularly since the end of 2018, has had very serious neurological issues to address.
The claims were investigated and the investigation led to the revelation that between the 24 April 2008 and 6 February 2014 various benefit payments, 92 in all, were paid in respect of false claims for 405 medical services made by the prisoner for herself, the daughter to whom I have referred and her partner.
The details of these claims in summary, by reference to the individual court attendance notices dealing with specific claims or groups of claims, are that Teoura Key was the patient in respect of 31 separate matters giving rise to particular offences, 28 of which she was the only patient and three in which she was included in a claim with the prisoner.
Sam Inia was claimed to be a patient in respect of four of the particular court attendance notices, two of which he was the only patient and two of which he was included in a claim with the prisoner, and the prisoner herself claimed to be a patient in respect of 62 of the separate offences contained within the court attendance notices, 57 of which she was the sole patient and five of which she included her daughter and her husband as patients on the claim.
The Medicare benefits paid to the prisoner ranged between a minimum of $101.80 which was received in cash in January 2009 and a maximum amount of $8,260.75 also paid to her in July 2009. The total of the false benefits claim by her amounted to $224,986.80 over the six year period in general terms.
There were 12 medical practitioners or service providers used with respect to the offending. Investigators had made in the course of their investigations, inquiries of the medical practitioners or their relevant practice managers as to whether the offender or the relevant family member was a patient during the period of offending.
I will set out some of the details from the schedule for the purposes of the facts. I should point out that one of the doctors involved, Dr Margaret Stewart, has been a friend of mine for close on 50 years. She was probably the least involved of all the medical practitioners, she being a radiologist and as I understand it, a partner in a radiology practice where the prisoner worked. The key link with all the doctors is that at various times the prisoner was an employee, either as an accounts clerk or sometimes working in a senior position such as a 'practice manager'.
Dr Mutayyab Shah was a gynaecologist and obstetrician and for him she was a former staff member and he was involved in claims amounting to one of the 90 or 92 charges initially brought. Dr Rodney Stewart Allan, who was a neurosurgery specialist, is referred to in the schedule in 61 of the original charges brought, which represents 322 full services claimed. He is by far and away the medical practitioner most claimed by the prisoner to have provided medical services.
For this particular specialist the prisoner was employed as a practice manager between 25 February 2008 and 13 March 2009 and responsible for day to day operations of the practice maintaining records for the practice. I am informed some of the offences occurred during her employment, others occurred after her employment had finished.
Dr Mark Nallaratnam, a cardiologist at Macquarie University Hospital was referred to in ten of the charges involving thirty three full services claimed. That particular specialist employed the prisoner as a staff member and she was also a former patient of that particular doctor. There are three other doctors as I understand it in the same practice, Dr Thomas Lam, a cosmetic and plastic surgeon, Dr Pour Soltan, an oncologist, Dr Hsu, a general surgeon and Dr Kuo, a general surgeon, again at Macquarie University Hospital. These doctors are referred to in eleven of the charges involving twenty five false services claimed. The prisoner was, at relevant times, a staff member at Macquarie University Hospital and I was informed the funds were paid into the prisoner's bank account from 9 May 2012 to 2 January 2013. Some of these offences apparently were committed during her employment at Macquarie Hospital and I note, as I will come to shortly, from the facts that have been provided to me, that the prisoner committed other offences which have been dealt with in the Local Court in respect of sums of money relating to her association with the Macquarie Hospital.
Dr Margaret Stewart, Dr Lawrence Harding-Smith and Dr Nigel Hunter conducting a radiology practice known as Sydney Central Imaging were involved in four of the charges described or court attendance notices earlier referred to, involving ten false services claimed. The prisoner was a former office manager at Sydney Central Imaging, at the Ashfield practice, and worked there for a period of time up until December 2011. Dr V Khoury worked at Burwood Cardiology. There are four of the ninety odd charges relating to him involving eight false services claimed. The prisoner was the practice manager at Burwood Cardiology for a period of time and I am informed that income from Burwood Cardiology was paid into the prisoner's bank account from 11 May 2010 until 13 February 2011. Two of the "charges" relating to Dr Khoury occurred whilst employed at that practice and two of the charges were committed after her employment had ceased. The last relevant medical practitioner is Dr Paul Sutherland, an obstetrician at Royal Prince Alfred Hospital who is referred to in two of the "charges" involving two false services claimed. The offender did not work for that doctor but was a patient of that practice from August 2008 until May 2009.
The facts set out the respective bank accounts into which benefits were paid, one was a Credit Union account in the name of TN Inia and ST Inia from 24 April 2008 until 20 September 2012. That was an account opened in 2008. There was an ANZ bank account in the name of T Key, another name by which the prisoner is known, into which payments were made from 20 September 2012 onwards. This account was opened in April 2010 and the prisoner was the sole signatory to this account. These accounts also received other monies, being regular payments for income for the prisoner and her partner.
The prisoner was invited to participate in a voluntary record of interview which was conducted, in May 2015 and she was shown various Medicare claim forms, the subject of investigation and relevant invoices and made a number of admissions. She admitted that she was never provided with the medical services claimed, although she was unsure about a small number of claims. She said that she had signed all the false claim forms and that she had created the service provider invoices submitted to Medicare in support. She also said that sometimes she created the false invoices at the service provider's rooms where she worked and other times she would remember what the invoices looked like and created, in effect dummy invoices, on a home laptop or computer. She gave an explanation for her offending as being "desperate" for money. To be specific in answer to question numbered 938, although I query the numbering of the questions, she was asked why she made particular claims and she said:
"Because I was desperate for money and I knew - I knew it was stupid and I knew that there was no way I wouldn't not get caught but I was so - I was so desperate for money and I just, I don't know I just"
And the next question asked was:
Q: "So was there something in particular that made you desperate? Was there something going on in your life at that stage?
A: There's been for the last ten years of my life we've had issues at home with gambling and drinking and just not being able to pay our bills and the rent and et cetera."
She said that she did not buy anything significant from the monies gained. There were no extravagant holidays but she used the money for living expenses and she knew that what she was doing was dishonest. Attached to those facts was a great deal of detail in court attendance notices and the schedule to which I referred which enabled me to check the number of claims made against Margaret Stewart, the person to whom I earlier referred. I must say I raised that issue when I heard the name Stewart mentioned that identified my friend by her Christian name and her speciality but there was no objection to me concluding the matter. It is quite clear that she did not suffer any personal loss. But I will come to the implications of the offending shortly.
The prisoner was born in January 1974. If I could just dwell slightly longer upon her criminal history. She has a finding of guilt at the Local Court in November 1999 for offences committed in September of 1999 of stealing property as either a clerk or servant and obtaining money by deception in which instance she was ordered to enter into two s 558 (Crimes Act 1900) good behaviour bonds for a period of twelve months that would involve the recording of convictions and to pay $1,324 compensation. She was charged in November 2007, that is, before she commenced committing the series of offences giving rise to the charge on the indictment. On 14 November 2007 that matter was at court. In September 2008 she did not appear. The offences in question which were six counts of obtaining money by deception, were said to have been committed in 2006. She finally was dealt with at the Downing Centre Local Court on 27 April 2010 in respect of the six counts of obtain money by deception, as shortly described, and I have the facts in relation to that. She was placed on a good behaviour bond in each instance for a period of twelve months with orders to pay compensation of $1,963.49. The precise circumstances of her situation between, for example, 14 November 2007 and 27 April 2010, so far as bail was concerned I am not entirely certain. But she certainly committed offences or made specific claims that were fraudulent subsequent to 27 April 2010 whilst she was subject to that bond for a period of twelve months. But that is a small proportion, I should say, of the total number of matters giving rise to the individual charges brought by court attendance notice.
The prisoner was charged after the offending with which I am concerned, shortly after she was interviewed by Medicare investigators on 17 June 2015, in respect of an offence for which she was finally dealt with on 25 February 2016. The offence is described in the criminal history as 'steal property as a clerk or servant' and was committed between 27 January 2012 and 8 June 2013.
Reading the facts that have been provided to me by the Crown, nothing much turns upon it; it would seem that there were three offences brought against the prisoner. But, as I would understand it there was the one order made for her to enter into a bond pursuant to s 9 on 25 February 2016, perform community service, attend upon the Salvation Army and pay compensation to Macquarie Hospital at the rate of $170 per week to satisfy the sum in compensation of $43,349.
On the range of dates that I have available to me it is clear that offending occurred concurrently with the offending with which I am concerned over that period between January 2012 and June 2013. But the prisoner was not subject to the good behaviour bond that was ordered at the time of the offending with which I am concerned.
The offending is of significance in this matter because it shows a course of conduct that straddles across the offending with which the Court is now concerned to dispose of. There was a great deal of evidence in the defence case, particularly in respect of the medical position of the prisoner and her mother. The prisoner prior to going into custody in May of this year was her mother's "carer". I understand from an affidavit of the mother's sister, the prisoner's aunt that the prisoner lived close by to her mother.
The most thorough report bringing various matters together arising from the detailed medical evidence produced by the defence is in the report of a consultant neuropsychologist, Dr Sally McSwiggan, who had available to her the various medical reports which are included in the defence bundle.
The chronology of relevant events in terms of medical issues is that on 6 November last year the prisoner had a surgical biopsy of a brain tumour on the left frontal lobe region. She had been having daily seizures, up to seven a day, from August 2018. After biopsy the brain tumour identified was categorised as a Grade II Oligodendroglioma. My research has revealed that this form of brain cancer is a malignant tumour unusually found on the cerebellum for which the aetiology is unknown.
The prisoner after the biopsy was placed on antiepileptic medication. The seizures that she suffered and continues to suffer are called "absence seizures" in that when she has a seizure she does not lose consciousness but cannot respond to command. She feels nauseous and usually has a metallic taste in her mouth as a warning that a seizure is about to occur. After the biopsy she undertook radiation therapy, firstly, but the seizures continued to persist.
The tumour is unsuitable for surgical intervention. CT imaging showed that the tumour was in the left inferior frontal lobe extending to the anterior/medial temporal lobe and insular. Reports from an oncologist reveal that there was some reduction in the size of the tumour after radiation therapy in December and January and although her seizures were reduced in number, they still remained uncontrolled by medication. Such is still the case.
She requires ongoing medical treatment and monitoring for the foreseeable future, likely lifelong. Her life expectancy is at this stage estimated to be no less than ten years but the situation could change. It was recommended after radiation treatment that she should undertake chemotherapy. As I understand the matter, she undertook chemotherapy in March and April of this year. It is a little unclear to me from the evidence whether she completed that chemotherapy before going into custody.
It is uncertain as to how long the tumour has been there but the location of the tumour is said to possibly affect judgment and insight. The issue of any causal connection between this condition and the offending behaviour was considered by the neuropsychologist and I will come to that shortly. In speaking to the neuropsychologist the prisoner did give a different account of her motivation for committing the offences to that given to the investigators which I have quoted.
To the neuropsychologist she said the offences were motivated for a want not to struggle financially. The neuropsychologist quotes her as saying that;
"She said that the pressure came from lifelong dissatisfaction with herself and financial circumstances, wanting the lifestyle of peers around her".
The Crown does submit that the two versions sit at odds with one another and that may appear to be so. However, it seems to me whichever way one looks at it, whether the latest account or the earlier account is accepted, neither version provides any mitigation for the offending.
It is in this context that learned counsel for the prisoner submitted that the offences were offences of "need rather than greed". In a sense they were, in that I understand that either version reflects upon a financial need arising out of life's circumstances. However on examination of the material and discussion of the matter with learned counsel, there appears to be, in the context of the slogan used by learned counsel for the prisoner, that there was no relevant need other than the financial need for personal expenses and a modest lifestyle.
The expression used by learned counsel for the prisoner reflects the decision, if it were true, to be dishonest in order to serve some altruistic purpose. There is no evidence of that here. The neuropsychologist's report reveals no history of psychiatric treatment or any other remarkable features of a medical history up until August 2018. The prisoner denied that she had a history of illicit substance abuse. She was alert, oriented and denied any psychotic phenomena.
She gave details of a background that reflected some level of disadvantage although she continues to have a close relationship with her mother despite that fact. Psychometric testing revealed her to be between average to high average intelligence with a current intellectual functioning placing her generally between the 43rd and 50th percentile of individuals in her age range.
Although her working memory which includes measures of attention and concentration and exerting mental control were slightly lower, the differences revealed were said to be not clinically unusual. Her memory was of average capacity. Her performance on executive functioning tasks was intact. The tests were believed to be an accurate reflection of her relevant abilities. She has no major mental disorder such as a mental illness or inherent disability although she has a number of identified psychological vulnerabilities, including some emotional instability and poor coping skills. She satisfied the criteria for an analysis of Cluster B personality disorder.
The psychologist opined that she demonstrated traits of "antisocial personality disorder" and "borderline disorder". The psychologist described:
"her pervasive disregard of rules and a failure to conform with social norms as evidenced by her repeated unlawful behaviour, her poor sense of self, repeatedly putting her own needs above others".
Ultimately the neuropsychologist concluded that she had no major or minor neurocognitive disorder. Claims of poor memory that were made, more likely reflected impaired retrieval where her ability to learn and recall is now more of an effort and less automatic than it was before her treatment for the brain cancer.
Her medication causes some lethargy. The impact of the brain cancer diagnosis and prognosis and these legal proceedings are said to be likely to impact upon her mood and her attention to detail. The neuropsychologist said she will need a level of care and protection in custody given her seizure disorder. She will be more vulnerable to injury. She will be unlikely to be fit for work in custody. She may need further chemotherapy whilst in custody in the near term. There is no evidence available to me as to whether this can or cannot be managed by Justice Health.
The neuropsychologist said she would not speculate as to any relatedness of her tumour to her offending behaviour. However, one has to bear in mind that the diagnosis of the tumour occurred over four years after the completion of the offending behaviour with which I am concerned and over that four years symptoms only started to emerge in August of last year.
She requires psychological therapy to address a history of trauma to help her with her emotional stability and reduce motivation for reoffending. The neuropsychologist said that disorders of personality such as she identified have to be typically treated over a period of years and are not amenable to "cure", to use my word.
She will need assistance from a clinical psychologist whilst in custody. She will also need regular medical monitoring in custody. The combination of matters identified in the core medical evidence and the analysis of the neuropsychologist point to substantial circumstances of hardship in custody beyond what would ordinarily be endured by a person with the prisoner's background serving a custodial sentence for the first time. I should point out that the matters that I have referred to are fully documented in the original source material produced to the Court.
I have an affidavit from the prisoner's husband who attests to his close relationship with the prisoner and her close relationship with their twin boys and her daughter. He attests to the significant effect upon her of her cancer diagnosis and the fear she has that it could kill her. There have been substantial changes to her life and the life of the family since the diagnosis last year. He speaks also of the terminal illness of the prisoner's mother and the care that that prisoner was providing to her since that diagnosis.
Mr Inia is the sole breadwinner for the family and told the Court through his affidavit that he had a net income of $870 and fixed outgoings for rent alone of $630 a week, leaving only $240 a week for "everything else" as he described it. He has daily responsibility for dropping the boys off at school, attending work, preparing the boys' dinner, supervising their homework and the like. There are many difficulties for the family arising out the prisoner's presence in custody which I have taken into account.
There is also the requirement of the family to travel every week to see the prisoner in custody which no doubt is distressing for children so young, they being now ten years of age. There have been effects upon their behaviour through their mother's custody. Both boys suffer from asthma. The boys have had some problems at school.
Notwithstanding these trials and tribulations the father said that the family is doing its best to - to use my words again, "soldier on", with a view to more positive times in the future. I accept that the prisoner has family support and I accept it in the context of the family where both parents in the past have been in employment, there are now considerable hardships for the father and the children as a consequence of the mother's behaviour.
I also have an affidavit from the prisoner's aunt, the sister of the prisoner's mother, who has had to travel down from Queensland to become the carer of her sister now the prisoner is in custody. She is the only person apparently who can provide this intense support. This has caused considerable disruption to her life. I accept that the mother's condition is serious, in fact, it is terminal and the mother's cancer which I need not dwell upon requires her to undertake therapy, such as chemotherapy, which has been disrupted due to conditions caused by immune suppression and stress arising out of her illness.
The aunt gives evidence of the prisoner's support for her mother before she came into custody and the impact upon the mother of the daughter's absence. The prisoner's mother is afraid for the future as one would expect and certainly does not want to be without her daughter while she is dying. The prisoner's separation from her mother has and continues to cause stress and fear and sadness to all concerned. I understood the aunt would wish to attend the sentencing proceedings but was unable to do so because she was caring for her sister.
I also have a handwritten note from the prisoner's mother which I am prepared to accept. She speaks of the support for her by the prisoner in attending to her. She said that her daughter had quite changed over the last several years. She expressed the opinion that she believed the tumour had had an effect upon her personality and characteristics. This is not a matter I could conclude is correct on the available medical evidence and the relevant chronology of events. The prisoner's mother speaks of the affection for her children and their fears in her absence. The mother notes the intense medical treatment the prisoner has had in the community but is concerned as to the level of care she will receive in custody will not match that available on the Central Coast. I have taken into account all that material.
It must be said on reflection of this material tendered without objection that there is a constellation of matters relevant to the sentencing exercise that will affect the circumstances of the prisoner in custody. The stress of being separated from the children, the stress of having a serious illness which makes her vulnerable to seizures and less likely to be able to participate in any programs that may be available, the fear and concern in relation to her mother's terminal condition, a person for whom the prisoner had responsibility of care before she went into custody, are all substantial matters.
Unfortunately for the prisoner in terms of the sentencing that occurs today, the situation is not so exceptional that it permits the Court to release the prisoner to the community immediately. This is particularly so given the criminal history and reflection upon matters properly to be taken into account including the objective seriousness of the offending, the period of time over which it occurred, the breach of a bond or offending while subject to a bond in certain instances and the like.
However, the matters that are set out in the written material produced for the prisoner are highly relevant to the fixing of the appropriate penalty particularly to the minimum time that the prisoner should serve in custody. It is to be remembered that the various matters to which I have referred not only are to be considered in the context of the objective seriousness of the offending but in the absence of entitlement to particular leniency because of her criminal history.
I have extensive submissions in writing from the Crown in their usual erudite and detailed form as well as from counsel for the prisoner. The Crown sets out in considerable detail principles to be applied in sentencing in respect of Commonwealth matters. I have short oral submissions from both Crown and defence to assist me as well. Arising from the material presented in the submissions I am now aware that the prisoner has repaid $790.00 of moneys owed to the Commonwealth government. This is a very modest repayment given the time available to the prisoner to do so. But it also must be noted that the prisoner would appear not to have any specific assets under her control that are negotiable for the purposes of repaying any reparation and that she and her husband have for some time been living essentially hand to mouth.
I accept in general terms that the moneys acquired by the prisoner have gone into living expenses but have not been spent on acquiring valuable assets or acquiring luxury goods or other lavish spending.
I note that the total sum of $224,986.80 was obtained by the prisoner over an approximate six year period on the particulars available to me. Of course on one hand this length of time speaks to the objective seriousness of the offending, and the extended period of dishonest behaviour. On the other hand without having to drill down into the figures it roughly averages out at about $36,000 per year. I also pick up matters raised by both the Crown and the defence that there are some breaches of trust involved in the offending. Of course none of the money obtained was financial reward denied to the respective doctors because the payments made to the prisoner were for services not rendered.
However the doctors reposed trust in the prisoner and their other employees to deal honestly with Medicare, an organisation very much central to the funding of medical fees. Although I acknowledge of course that Medicare rebates as we all know on many occasions represent only a small fraction of what one is required to pay as the actual fee for the medical practitioner. The medical practitioners involved however, as with all medical practitioners, would wish for a good relationship with Medicare and they will have their practices the subject of any audit or investigation through no fault of their own as must have happened in this situation. Such investigations bring opprobrium unnecessarily to individual doctors. This type of "breach of trust" or these types of "breach of trust", if they can be so characterised, are not in my view as serious of course in the same context as a breach of trust such as a staff member dishonestly accounting for monies legally receivable by medical practitioners for their own ends. That is banking into their own accounts monies that should have been banked for the medical practitioner, and the like.
I just say in circumstances well removed from this I actually have friends in Wagga Wagga in medical practice who have had this happen to them through the dishonesty of a practice manager. Significant sums that were never recovered. Again that is not the situation. The prisoner's modus operandi was to make false claims on Medicare not to divert sums of money legitimately due to the doctor.
There is another dimension to this aspect of breach of trust however. I hasten to say this aspect is not as serious as the breach of trust that occurs when a professional person betrays with dishonesty, such as a solicitor stealing from a trust account. However it must be pointed out that there is trust reposed by Medicare in those working for medical practitioners and processing claims to act honestly. As we all know nowadays claims upon Medicare are usually handled in the surgery through electronic transactions, and there must be millions and millions of these occurring on a daily basis across the country, each individual transaction incapable of immediate review or checking.
The character of the transactions and the manner in which they are electronically negotiated is very much dependent upon the honesty of those undertaking the electronic transactions. In this case for a long time the prisoner was able to operate without detection either by the relevant medical practitioners who were completely ignorant of what was going on and Medicare itself. The modus operandi of the prisoner was such that it was only an unusual feature of her transactions that led to further inquiry by Medicare.
In the oral submissions of counsel for the prisoner and in the written submissions I was referred to aspects of the Commonwealth Crimes Act which I will come back to when I come to the Crown's written submissions. It was acknowledged orally that the prisoner did not have a record that entitled her to any particular or inherent leniency. It was acknowledged that at particular times throughout the offending she was subject to a good behaviour bond, and she had a concurrent conviction which I have already set out. It is acknowledged in the submissions of the prisoner that the offence to which the prisoner has pleaded guilty in this court represents a series of criminal acts. It was pointed out that the prisoner readily made admissions to the Medicare investigators which I note is a matter to her credit. Submissions were made about the plea at the Local Court and committal for sentence which I have already noted is worthy of a discount for the utilitarian benefit of the plea and for facilitating the course of justice. She has co-operated with the authorities I accept to some extent. It is submitted on behalf of the prisoner, in the context of the deterrent effect upon the prisoner and others, that one should take into account the already significant impact of the prisoner being separated from her young sons and her daughter, as well as her mother particularly who is terminally ill.
These circumstances will have a salutary deterrent effect upon her which I accept. There is obviously a need, as was conceded by counsel for the prisoner, that she be adequately punished committing undetected offences over a period of time to the detriment of the community who provide the tax income for Medicare to exist. I have taken into account the various medical matters that have been identified. I will come back to that matter in a moment in some greater detail. I accept the prisoner has some degree of disadvantaged upbringing in the manner in which it is discussed by the High Court in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37, and also the decision of Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38. But whilst I acknowledge there is some aspect of deprivation in the prisoner's background and they are relevant to the sentencing exercise to some extent. The facts of the matter are, although these matters shape the person who comes for sentence usually in circumstances beyond that person's control, this is not a situation of extreme social deprivation or a situation of historical factors influencing the social context of the prisoner's upbringing as particularly occurred in the case of Mr Bugmy, an Aboriginal man from Wilcannia.
It is submitted, by reference to the terms of the Crimes Act 1914 (Cth), that the prisoner has good prospects of rehabilitation and it should be encouraged. I am requested to have full regard in the proper way to the impact upon third parties. Reference was made in the submissions of the prisoner to the delay between the interview by the Medicare and the commencement of the prosecution, and to the delay to the resolution of the matter in Court. The Court and Crown in a couple of contexts has provided an extensive chronology of the course of litigation, and in my view there can be no blame laid at the feet of the Commonwealth Director of Public Prosecutions and its officers for the delay. But the course of the litigation has taken somewhat longer than would ordinarily have been expected.
However, some of that problematic course has been beyond the control of the prisoner. For example, in the detailed chronology I note for a lengthy period of time the prisoner was without legal representation for reasons that are not fully explained. However there is a point legitimately to be made about the fact that she was interviewed by Medicare in 2015 but it took a considerable period of time for the prosecution to commence. I can never understand why this is so. Sometimes one sees greater delay than a year or so. I have seen people charged with what is sometimes called "welfare fraud" over two years after having confessed their sins. For two years having given up a portion of their benefits such as Centrelink benefits as reparation, then finding themselves being charged. Here we are in late June 2019 trying to deal with this matter in a proper way. The delay in its various forms has added to the trauma and hardship for the prisoner although she has contributed in part to that, I accept.
If this matter had been dealt with expeditiously after the completion of the Medicare investigation the prisoner would have been sentenced and no doubt would have served a minimum term long before she was diagnosed with a brain tumour and long before her mother was diagnosed with a terminal illness which is likely to take her life within the next 12 months, from what I understand, and that is regrettable. As I said whilst it can be said there is some contribution to this delay occasioned by the prisoner, she did not appear on some occasions, she claimed she did not have the brief of evidence when in fact it had been served some months before. Again these matters are no fault of the Commonwealth Director. Delay is a relevant factor that acts in some mitigation upon the otherwise appropriate sentence.
In the context of the submissions made by the Crown and the defence I ultimately concluded that I should accord the prisoner a discount of 25% upon the otherwise appropriate sentence as I said earlier for both the utilitarian benefit of the plea of guilty and the facilitation of the course of justice. I need not discuss the relevant decisions. The leading decision in New South Wales now is Xiao (2018) 96 NSWLR 1; [2018] NSWCCA 4. But I note, and it would be self-evident to anyone who reads the decisions of the Court of Criminal Appeal, that since the decision of Xiao on every occasion that I have read a decision of the Court of Criminal Appeal re-sentencing an offender acting contrary to Commonwealth law, such discounts have been accorded by the Court of Criminal Appeal without fail. I need not dwell upon that matter.
I must say before Xiao there was a Victorian decision, the detail of which is not before me at the moment. I read the transcript of the argument of Mr Bromwich then appearing as Commonwealth Director of Public Prosecutions, now the Honourable Justice Bromwich, who actually conceded in the course of argument as the Commonwealth Director of Public Prosecutions that such discount should be allowed in circumstances where here in the District Court of New South Wales we were receiving written submissions arguing over the fact as to whether any discount should be provided for facilitating the course of justice as it was once identified in Crown submissions. In circumstances where the relevant case, Cameron v The Queen [2017] NSWCCA 229, had nothing at all to do with Commonwealth law. Anyway, be that as it may, I propose to permit that discount for the reasons I have outlined.
The Crown acknowledges in its oral submissions that the prisoner made admissions and there was some degree of cooperation. The Crown, however, points out, properly, the criminality is significant having regard to the sustained and systemic character of it occurring across a number of employers or medical practitioners with whom the prisoner had connection. The Crown pointed to in the oral submissions the conflict in her explanations. I have already dealt with that matter.
Coming back now to the Crown's helpful submissions and particularly the operation of s 16A Crimes Act 1914 (hereinafter referred to as "the Act"), that is at Pt 1B of the Act. The Crown noted that the Court must impose a sentence that is of a severity appropriate in all the circumstances of the Act. The matters set out in s 16A (2) are not exhaustive which is obviously so and many general overarching principles will apply to the sentencing exercise, particularly proportionality and totality of criminality, although here fortunately I only have the one count to deal with so proper effect can be given to totality.
The Court is to sentence applying the magical powers of "instinctive or intuitive synthesis". I have taken into account the nature and circumstances of the offence which I have detailed before, noting the length of time, the amount taken and the position of the trust involved.
The Crown in dealing with the issue of fraud seeks to cite the decision of Hawkins (1989) 35 A Crim R 340. I am very familiar with this case. I knew Mr Hawkins, not as a friend but as a person within the legal profession through the late seventies and early eighties. Whilst there are matters of general principle that are cited in the Crown' submissions that are not in dispute, with the greatest of respect to these written submissions and every set of written submissions I have received from the Commonwealth in fraud matters, it should be borne in mind that Mr Hawkins was a solicitor who defrauded his clients and stole from his clients over a number of years to the extent of about $7 million as my memory serves me. $7 million I can hasten to say in 1989 was a lot more than $7 million is now, but $7 million is a lot of money now.
The principles that are set out in the written submissions that are cited by the Crown relating to cases of premeditated planning, deception and fraud, reflecting upon the degree of criminality and the like are obviously applicable. But the pronouncement of those principles in the context of the facts of Mr Hawkins' case reflects their significance in particular context. Likewise, reference to the period of time over which the offences were committed. Yes, it is correct to say, as was said in Hawkins, that the offending represents "no temporary dipping into the till to overcome a problem that may have arisen", but when the Court of Criminal Appeal was referring to dipping in the till they are talking about a solicitor stealing from his clients, a much greater breach of trust.
I wish the Commonwealth when it deals with its submissions to be presented in Court considers the proper context and the true context in which the offending comes forward. Of course, when one sees in every written submission the same references to the same cases one feels that on occasions the matters in the written submissions are more addressed out of a word processor than by applying independent thought to what are the real issues that the judge has to grapple with.
In any event I note those principles that are extensively cited and they have application to varying extent to this prisoner. They are all matters of degree depending upon the facts of the case.
The sum of money taken is properly to be characterised, as the Crown submitted, as significant. Although I note in relation to this offending in dealing with the range of seriousness it is theoretically possible by the same methodology to defraud the Commonwealth of millions of dollars or many more hundreds of thousands of dollars than occurred in this case.
I note the Crown's submissions in relation to other issues arising under s 16A (2), there must be adequate punishment and, of course, general deterrence plays a key role in sentencing for offences of this type where offenders steal from Commonwealth bodies funded by the contributions of the community through the payment of tax. This is acknowledged by counsel for the prisoner.
I am required to take into account the loss suffered by the Commonwealth resulting from the offence (s 16A (2) (e)), some contrition exercised by the prisoner (f), the fact that the prisoner has pleaded guilty (g) for which she receives a discrete discount, her cooperation as it is described in subparagraph (h), the requirement to ensure adequate punishment (k), the character, antecedents and age of the prisoner and any physical or mental condition of the prisoner (m), her prospects of rehabilitation and the probable effect of any sentence or order upon her family and dependants (p).
The prisoner has some prospects of rehabilitation, particularly in the shadow of the illness from which she now suffers, and her changed personal circumstances. The Crown, of course, points to her breach of a good behaviour bond or bonds provided to her in her previous convictions as well as the concurrent conviction for the offending with which I am concerned as reflecting adversely upon her prospects of rehabilitation. I am informed there is some other matter waiting to be dealt with in the courts but I have been provided with no detail of that. That is to be taken into account and it does to some extent reflect upon her prospects of rehabilitation adversely to her but at the same time that behaviour, past and to be further dealt with by the courts, has occurred before the illnesses which have now afflicted her.
I accept, however, that the prisoner has taken responsibility for her conduct by making admissions and in my view ultimately confessing at the first reasonable opportunity and also pleading guilty in a reasonably timely fashion all things considered. Of course, she could have gone and volunteered her wrongdoing to one or other of her employers, or to Medicare, at an earlier time. But her cooperation in the interviewing process is of some importance.
The prisoner is now 45 years of age and is a mature person with mature responsibilities and had so at the time of her offending. She should have known better to do what she did and there is nothing in the medical evidence to suggest that she was suffering from any physical or mental condition that would have infringed upon her capacity to make relevant decisions. I have already taken into account to the extent that they are relevant, her means and financial circumstances as they are reflected in s 16A(2)(m) and s 16C(1) of the Act.
The Crown's submissions reflected upon also the relevance of mental disability or mental illness. None of those matters as, for example, were discussed in the Court of Criminal Appeal decision of De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, arise in this matter because there is no evidence suggesting such mental illness or disability existing at the time of the offending. Although the mental disability of the brain tumour will certainly, as was discussed in De La Rosa, have an impact upon her circumstances of custody. I have noted what the Crown has said in relation to the issue of delay and I have dealt with that matter. I have also noted what the Crown has submitted quite properly and accurately in relation to fact finding and the mechanisms for fixing sentences under Commonwealth Law. No sentence other than a term of imprisonment can be imposed having regard to s 17A of the Act.
The Crown has in the context of dealing with the impact upon third parties referred to a number of authorities concerned with the probable effect of incarceration of a prisoner upon those third parties. The impact upon the prisoner's family is not sufficiently extreme (beyond the hardship which would inevitably result to a family when a parent is incarcerated) such as to warrant a non-custodial sentence, Herrera (unreported decision of the New South Wales Court of Criminal Appeal) 6 June 1997. The probable effect of the sentence upon the prisoner's family remains a relevant factor, however, to take into account as part of the general mix of subjective features as the Crown states in its written submissions. In the absence of exceptional circumstances potential hardship to the prisoner's family cannot be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment, Girard [2004] NSWCCA 170.
The main focus in the submissions ultimately from the Crown was the usefulness of the comparative sentences. In the context of the need to ensure consistency in sentencing federal offenders allowing for the fact that no two cases are alike and there will obviously be a number of differences or changes of emphasis and the individual factors to be considered, see Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. The cases cited, either by the Crown and by the defence, include a Court of Criminal Appeal decision of Carr from 2003, a District Court judge's decision in Sutherland from 28 March 2013, a decision of the Court of Criminal Appeal in the matter of Pipes from 2004 and a more recent decision of the Court of Criminal Appeal in the matter of Dagher from 2017.
The various offences in those matters either dealt with the same legislation with which I am concerned, or its predecessor, s 29B Crimes Act 1914, which was repealed with the current provision being enacted. Both offences carried the same maximum penalty. The differing facts in the cases reflect the range of factors and each case had different issues that were salient to the sentencing process. For example, and I only use one illustration otherwise I would be here for hours analysing the differences. The decision of Pipes involved the defrauding of a Commonwealth department of the sum of $155,645 which money was repaid, I hasten to say, by an offender who had a clear record. However, significantly, that offender was an employee of that department and the trust placed in an employee of a Commonwealth department must of necessity be greater than any trust identified to be placed upon this prisoner, although there was a degree of trust as I have earlier indicated.
None of the offenders in the cases I have cited had significant health problems. Although in Sutherland, who defrauded the Commonwealth of $161,978, had some "ill health" requiring regular monitoring. His motive for offending was that he was unemployed and had a gambling problem which is hardly a matter in mitigation.
I have had regard to all of those cases and sought assistance from them to provide some guidance to a range of penalty that otherwise would be available. Statistics do provide, when available, some assistance in this regard but not as much as comparative cases. Having taken all those matters into account, I turn to making the orders in relation to the prisoner. If you do not mind standing up, ma'am.
In relation to the offence that you have committed and pleaded guilty to, you are convicted. I sentence you to two years and nine months imprisonment to commence on 9 May 2019 and on my calculation that will expire on 8 February 2022. I direct that you be released at the expiration of ten months of your sentence on 8 March 2020 upon you entering a recognizance pursuant to s 19AC(2) Crimes Act 1914 (Cth) yourself in the sum of $200 to be of good behaviour for a period of three years from that date and to appear to receive sentence if called upon to do so at any time in respect of any breach within that said period.
A further condition of the recognizance is that you are to accept the supervision and guidance of an officer of the New South Wales Community Corrections Service for such time as the Service deems necessary and obey all reasonable directions of the Service and that you will report to the New South Wales Community Corrections Service at Gosford within seven days.
So, you will be subject to your rights of appeal and the Crown's rights of appeal, released on recognizance to be of good behaviour for three years. That is longer than the balance of the sentence, I hasten to say. I have power to do that. Furthermore, in your matter I order that you pay reparation to the Commonwealth in terms of the order I was given. I order that you make reparation to the Commonwealth by money payment in the sum of $224,246.80 pursuant to s 21B Crimes Act 1914 (Cth).
HIS HONOUR: Do you understand the sentence I have imposed?
OFFENDER: Yes, your Honour.
HIS HONOUR: Your minimum term is ten months, do you understand?
OFFENDER: Yes, your Honour.
HIS HONOUR: And that minimum term I am more than happy to place on the record reflects recognition, particularly, of your own personal health situation. But for that, one might have expected the minimum term to be substantially greater.
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Decision last updated: 13 July 2020