Ryan v The King [2024] VSCA 74

1. The sentencing judge described the charges and then noted the criminal record of the applicant.[3] Among other things, she had two court appearances for obtaining property by deception. On 5 June 1995 she was convicted of 94 counts of obtaining property by deception, for which a 12-month community-based order was imposed and compensation of $15,695.37 was ordered. On the same day, the applicant was convicted of three further charges of obtaining property by deception and sentenced to 3 months' imprisonment on each charge, to be served concurrently and suspended for 12 months under former s 27 of the Sentencing Act 1991.[4]
2. On 15 July 1996, the community-based order was cancelled following a breach and 6 months' imprisonment were instead imposed on each charge, to be served concurrently with 3 months of the sentence suspended for two years. The suspended term of imprisonment imposed on 5 June 1995 was reinstated at the same time.
3. The applicant's other convictions were of a different character and related mainly to contravening family violence intervention orders.[5]
4. The present offending occurred when the applicant was aged between 42 and 43. No money obtained as a result of the offending had been repaid.[6]
5. The judge referred to a bundle of material that was tendered on the plea hearing. It included some screenshots of social media communications which referred to the applicant in negative terms, and a photocopy of an envelope addressed to the applicant which appeared to have been posted on 19 January 2020. The envelope contained a piece of paper upon which offensive comments were made about the applicant.[7]
6. The judge referred to a report prepared by a psychologist. He recorded that he had found her to be an unimpressive witness and that her general analysis lacked penetration and was superficial. Contrary to the opinion of the psychologist, the judge found that the material did not support the applicant's claim that certain alleged bullying, including the communications about her on social media and the material sent through the post, had been causative of the offending conduct. The judge referred to matters in the psychologist's report which he did not accept. In particular, the applicant had told the psychologist that there was no planning involved in the offending. The judge found that the number of transactions could only have involved a very considerable degree of planning, analysis and care. He noted that the applicant had exploited her position of trust in an extraordinary and sustained way for a little over a year. She had falsely told the psychologist that the total amount that had been paid to her was about $20,000 and that the offending did not span a year. The judge found that those instructions to the psychologist were clearly false and that the applicant must have known that they were false when she gave them.[8]
7. The judge accepted, however, that the applicant suffered from a number of mental disorders. He considered that there was a real risk that her mental health would deteriorate during her period of incarceration. The judge also took account of pain and suffering the applicant was experiencing as a result of a physical complaint which would require surgery while she was in prison. He accepted that this would increase the burden of her term of imprisonment.[9]
8. The judge referred further to the abuse to which the applicant had been subjected and said:

I do not accept that any online abuse that you were receiving during the period of your offending, to the extent that there was such abuse, was either a causative factor or in any way a mitigating factor so far as your offending is concerned.[10]

1. The judge referred to the deprived upbringing of the applicant, which he accepted was relevant in a general way. Her mother had a mental illness and her parents' marriage broke up when she was five years old. The applicant had been required to leave the family home in which she lived with her father and his new partner after using money she had found in the home to fund education fees.[11] The judge did not accept that the applicant's moral culpability was moderated by her deprived upbringing.[12]
2. The judge recorded that the applicant pleaded guilty in the aftermath of the COVID pandemic and that she would receive special credit for her pleas of guilty. He accepted that there was a degree of remorse, but that this was tempered by her lack of acceptance of her full criminal responsibility.[13]
3. The judge also referred to the very considerable delay since the applicant's offending and since she was first charged in March 2022. He acknowledged that the delay had meant that the matter had been hanging over the applicant's head and would have caused her considerable stress and anxiety. He described the delay as 'undoubtedly' a mitigating factor in her favour.[14]
4. The judge assessed the applicant's prospects of rehabilitation as fair.[15]
5. Finally, the judge referred to a table of comparative sentences which the prosecutor had provided. The judge noted that in each of those cases the offenders had received immediate custodial sentences.[16]

Proposed ground 1 - extra-curial punishment

1. The applicant referred to two submissions that had been made on the plea in relation to the material, including the social media material evidencing disparaging comments made about her. First, the material included applications for intervention orders which were relied upon in support of a submission that the applicant's mental functioning was impaired at the time of the offending. The judge rejected that submission and the applicant does not take issue with that aspect of the matter.[17]
2. Secondly, the remainder of the material, consisting of screen shots of social media and the written communication sent by post, were relied upon to support a submission that the applicant had suffered extra-curial punishment as a result of the offending. Counsel for the applicant had submitted that the applicant's reputation had been tarnished due to her offending being made public and that this made it difficult for her to live in the area where she was based. Counsel submitted that this difficulty also affected the applicant's children. The screenshots showed members of a local community group naming the applicant's new business and warning other members of the community about her.
3. The applicant submitted that extra-curial punishment, suffered at the hands of the community either by way of an immediate response to the commission of the offence or subsequent retribution, was demonstrated by this material.[18] The applicant submitted that neither the judge nor the prosecutor challenged the submission made at the plea hearing about the applicant having suffered extra-curial punishment. The judge had, however, made no reference to that matter in the sentencing remarks. It was submitted that, in failing to take the matter into account, the judge had erred.
4. The respondent submitted, first, that the fact that the judge did not refer expressly to the question of extra-curial punishment did not mean that he had given the matter no weight or had not accepted that the events upon which the applicant relied had occurred. Secondly, while there was nothing to suggest that the judge did not accept that the comments relied upon had been made and that the letter had been received, the judge had not accepted that the alleged bullying was a result of the offending. He did not accept that, to the extent that there was online abuse, it was a mitigating factor so far as the applicant's offending was concerned.[19]
5. The respondent further submitted that, even if error was established under this ground, leave to appeal should be refused because any extra-curial punishment suffered by the applicant would warrant such little or insignificant weight in mitigation of sentence that no different sentence should be passed. The respondent submitted that damage to an offender's reputation due to publicity surrounding charges is not an unexpected consequence of offending of this nature, and it regularly occurs following media or other reporting. The respondent noted that there was no evidence that any reputational damage resulted in the applicant being forced to move or cease employment and that there was no evidentiary basis on which the judge could have accepted that she suffered psychological trauma.
6. The respondent submitted that the social media posts were not menacing or threatening, but were instead messages of an advisory of warning character. There were no physical attacks on the applicant or threats of violence to her or her family. The respondent submitted that it could not be the case that any reputational damage and discomfort should be considered as constituting significant extra-curial punishment.
7. In my opinion, there is no substance in this ground. The material relied upon falls well short of establishing that the applicant has suffered the kind of extra-curial punishment which calls for a reduction in sentence according to the authorities. It is significant that there is no evidence of any specific hardship or psychological harm suffered by the applicant as a result of the communications relied on. Even a mental illness will count as past or additional punishment only in strictly limited circumstances. In Singh v The Queen[20] it was said:

It is well-established that, if an offender suffers a physical injury in the course of the offence, that injury may constitute a form of punishment for the offending which mitigates the sentence to be imposed by the court. This is sometimes referred to as 'extra-curial punishment'. Examples include an armed robber who was shot by police, and a driver injured in a collision which resulted from his culpable driving. Brain injuries suffered in driving offences have been treated in this way. It is also accepted that nothing turns in this context on the distinction between mental illness and physical injury.

However, the cases show that the circumstances in which a mental illness will count as past or additional punishment are strictly limited. In RLP, the offender developed severe depression and a conversion disorder after committing incest and other sexual offences over many years. The conditions were not caused by the offending, but were precipitated by the discovery of his crimes and the prospect that he was likely to be imprisoned for most of the rest, or all, of his life. The Court held that, in those circumstances, the conditions did not constitute some form of punishment entitling the offender to a reduced sentence.[21]

1. In the present case, the material put before the sentencing judge goes no further than to show that members of the community have expressed adverse opinions of the applicant, albeit sometimes in intemperate terms, primarily in the course of drawing her offending to the attention of others in the community. As the respondent submitted, the social media extracts were not menacing or threatening, but of an advisory or warning nature (albeit hostile in tone). The first message drew attention to the fact that the applicant was using a different name and said 'no one has talked about her Medicare scam in some time as all of us effected [sic] are dealing with investigators and have formally lodged complaints and given statements'. Another post said that the applicant, naming the medical practice, 'has a new business venture in Warragul ... Oh and she is now promoting fundraising for the fire relief (which will no doubt end up in her pockets)'. The third message asks anyone 'who has attended a medical centre' in the location of the general practice, to 'please check your Medicare statements. They have been shut down due to fraud and scamming. Don't understand why people open business's [sic] to try and rip others off'. The posted communication, written in capital letters, was more aggressive. It described the applicant in obscene and unkind terms and urged her to 'fuck off'. It said that 'we don't want you here!!!'.
2. This material goes no further than to show that members of the local community shared information about the applicant's offending and their adverse view of her as a result. They evidence reputational damage which is only to be expected from the revelation of offending such as that in this case, but little more. On the evidence, there is no basis for concluding that they caused anything more than embarrassment and discomfort to the applicant. They afforded no basis on which it would have been appropriate to moderate the sentence imposed on her.
3. Leave to appeal in respect of this ground must be refused.

1. The second proposed ground argues that the total effective sentence imposed was manifestly excessive. No issue was taken about the application of sentencing principles governing this kind of case. The respondent referred to a number of those principles in her written case. Among other things:

(a) General deterrence is an important sentencing consideration in cases involving fraud against the government.[22]

(b) Personal factors such as prior good character, age and prospects of rehabilitation are given less weight than might otherwise be the case. This follows from the increased weight given to general deterrence.[23]

(c) A sentence of imprisonment is ordinarily demanded even if the fraud occurs in circumstances of significant personal misfortune or is relatively unsophisticated.[24]

(d) The amount of money involved is a significant consideration in assessing the seriousness of the offending.[25]

(e) The Medicare claim system depends on the trustworthiness of the medical practitioners and others who use it.[26]

(f) The length of the offending period is a factor to be considered along with whether the offending involved deliberate and planned conduct over a long period with repeated and deliberate acts of dishonesty.[27]

1. The question raised by this ground is not whether the judge imposed the correct sentence, or whether the appellate court would have imposed the same sentence as the judge. The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[28] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[29]
2. The applicant accepted that the offending was serious on the basis of the amount of money obtained, the duration of the offending and the abuse of trust it involved. On the other hand, the applicant had pleaded guilty in the aftermath of the COVID pandemic, at a relatively early stage, namely on the first day of the committal hearing before any witnesses were cross-examined. The judge had accepted that there was some evidence of remorse and a very considerable delay in the applicant being prosecuted, charged and sentenced. The judge also accepted that the applicant had fair prospects of rehabilitation. Limbs 5 and 6 of Verdins v The Queen ('Verdins')[30] were applicable in light of her mental health conditions, including post-traumatic stress disorder and persistent depressive disorder. Reference was also made to the applicant's physical health and the need for her to have surgery while in prison.[31]
3. The applicant submitted that reference to comparative sentences supported the contention that the total effective sentence was manifestly excessive. Alternatively, even if the sentences imposed were within the available range, the applicant submitted that the length of time before she was eligible to be released was itself manifestly excessive.
4. The respondent submitted that the judge had given generous weight to all relevant mitigating factors and that a review of comparable cases showed that the sentence was within the range of appropriate sentencing options available.
5. The respondent emphasised the seriousness of the offending. The maximum penalty for each offence was 10 years' imprisonment. The offending was objectively very serious, involving $81,228.20 obtained by offending which was neither isolated nor spontaneous and occurred over a 12-month period during which the applicant engaged in repeated and deliberate acts of dishonesty by submitting 115 false claims and receiving 816 bulk bill payments which were not payable. When added to the offending in respect of charge 2, the applicant had engaged in systematic, planned and brazen offending, fully aware that she had no entitlement to receive any of the payments. The charges were both rolled-up charges reflecting multiple offending, each capable of constituting separate offences. The applicant had occupied a position of trust and exploited that position knowingly. She had relevant prior convictions for dishonesty offences and numerous prior convictions for breaching court orders including family violence orders, bail conditions and community-based orders. None of the money had been repaid and the applicant had shown little genuine remorse or acceptance of responsibility.
6. In my opinion, it is not reasonably arguable that the sentence imposed in respect of charge 1, the total effective sentence or the minimum period to be served were manifestly excessive. This was significant and serious offending by a person with relevant prior dishonesty convictions who exploited a position of trust in order to commit the offences over a period in excess of one year. General deterrence was a primary sentencing consideration. In my view, the sentence gave appropriate weight to the mitigating factors on which the applicant was able to rely, including the plea of guilty entered during the pandemic, Verdins limbs 5 and 6 and the delay involved in the case.
7. The comparative cases to which reference was made confirm this conclusion. Individual sentences imposed in past cases are not precedents which must be applied to future cases.[32] Nonetheless, they may serve as a 'yardstick' that illustrates, but does not define, the possible range of sentences available.[33]
8. In R v Squire[34] a sentence of 30 months' imprisonment was upheld, with a minimum term to be served of 9 months, for obtaining $45,685.95 from the Health Insurance Commission by issuing false receipts and claiming Medicare rebates in respect of them over a period of approximately four months. This was a similar case, involving less money, obtained over a shorter period of time, and in which the same sentence was imposed with a slightly shorter minimum period. The observations of McMurdo P, with whom Muir JA and Mackenzie J agreed, are apt:

Ms Squire was a mature woman with a relevant prior criminal history and some minor subsequent criminal history. She committed two serious offences involving the defrauding of Medicare, this country's publicly-funded health system. It is common knowledge that Medicare's administrative costs are high. Offences like these must greatly add to those costs ultimately shouldered by taxpayers. They also cause the millions of legitimate claimants to be burdened with more onerous and complicated procedures before receiving their entitlements. She received over $45,000, none of which has been or is likely to be repaid. She attempted to obtain a further $5,985. Her fraudulent conduct was sustained and premeditated. It warranted a significant deterrent penalty: see R v Holdsworth.[35]

1. Another similar case was Director of Public Prosecutions (Cth) v Au.[36] In that matter, a registered pharmacist entered false prescription details over a period of about three months and received payments totalling $108,189.04 to which he was not entitled. A sentence of 24 months' imprisonment with a minimum term of 8 months was imposed. It can be seen that this was a somewhat lighter sentence in circumstances where the offending took place over a shorter period but was otherwise similar to that in the present case. The offender in that case was found to have excellent prospects of rehabilitation and had made full and frank admissions demonstrating shame and remorse. There had also been restitution.
2. A sentence of 30 months' imprisonment, this time with a minimum period of 5 months to be served, was imposed in Director of Public Prosecutions (Cth) v Simpson.[37] That case involved a sum of $340,091 obtained by deception from the Commissioner of Taxation. The offender was a chartered accountant and tax agent. She was able to rely upon limbs 5 and 6 of Verdins. The offending took place in a context of significant family violence constituting physical and emotional abuse and threats, and was influenced in part by post-traumatic stress disorder. The offender had excellent prospects of rehabilitation and imprisonment would separate her from her young son, who she was raising virtually on her own.
3. In Dickinson v The Queen,[38] a sentence of 30 months was upheld for dishonestly obtaining disability support payments totalling $100,230.73 after the offender falsely reported that she had been diagnosed with, and was seeking treatment for, cancer. A minimum period of 12 months was ordered to be served. This was a sophisticated and sustained fraud perpetrated over several years, but the judge accepted that it was partly a product of the offender's mental impairment, so that her moral culpability was reduced.
4. The sentence imposed in the present case sits comfortably with those just mentioned. There is also no apparent disparity between the sentence and others referred to in the parties' submissions.[39]
5. For these reasons, it is not reasonably arguable that the sentence imposed in this case was manifestly excessive. The same conclusion applies to the minimum term to be served.

[1] Charge 2 relied also on the attempt provisions in s 11.1(1) of the Code.

[3] DPP (Cth) v Ryan [2023] VCC 1871 [2]-[7] (Judge Maidment) ('Sentencing Remarks').

[4] Repealed by Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, s 11.

[12] Ibid [37], rejecting submissions relying on Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) ('Bugmy') and Marrah v The Queen [2014] VSCA 119 [15]-[16] (Redlich and Tate JJA).

[18] The applicant relied on R v Allpass (1993) 72 A Crim R 561, 566-7 (Gleeson CJ, Hunt CJ at CL and McInerney J) and R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398, 410-11 [62] (James J, Tobias JA agreeing at 399 [1], Hulme J agreeing at 416 [109]); [2003] NSWCCA 216.

[19] See [16] above.

[20] (2021) 96 MVR 329; [2021] VSCA 161 (Kyrou and McLeish JJA).

[21] Ibid 339-40 [48]-[49] (citations omitted).

[22] R v Holdsworth; ex parte Director of Public Prosecutions (Cth) [1993] QCA 242, 7 (Pincus JA and Thomas J); Dickinson v The Queen [2021] VSCA 50 [64] (Kaye JA). Cf R v Newton [2010] QCA 101; (2010) 199 A Crim R 288, 294 [32]-[33], 295 [38] (Atkinson J, Holmes JA agreeing at 289 [1]) ('Newton'); [2010] QCA 101.

[23] El Rakhawy v The Queen [2011] WASCA 209; (2011) 214 A Crim R 124, 131 [36] (Hall J, McLure P agreeing at 126 [1], Buss JA agreeing at 126 [2]) ('El Rakhawy'); [2011] WASCA 209.

[24] R v Smith [2004] QCA 417 [16]-[18] (McMurdo P, Jerrard JA agreeing at [20], Chesterman J agreeing at [21]) ('Smith'); Newton [2010] QCA 101; (2010) 199 A Crim R 288, 296-8 [43]-[58] (Atkinson J, Holmes JA agreeing at 289 [1]).

[25] R v Hawkins (1989) 45 A Crim R 430 at 435 (Lee J, Newman and Loveday JJ agreeing at 440); Quetcher v The Queen [2010] NSWCCA 257 [34] (Price J, McClellan CJ at CL agreeing at [1], Latham J agreeing at [2]).

[26] El Rakhawy [2011] WASCA 209; (2011) 214 A Crim R 124, 131 [33] (Hall J, McLure P agreeing at 126 [1], Buss JA agreeing at 126 [2]).

[27] Dyason v The Queen [2015] VSCA 120; (2015) 251 A Crim R 366, 372 [33], 374 [42] (Whelan, Santamaria and Beach JJA); [2015] VSCA 120, quoting and referring to DPP v Bulfin [1998] 4 VR 114; Smith [2004] QCA 417 [17] (McMurdo P, Jerrard JA agreeing at [20], Chesterman J agreeing at [21]).

[28] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.

[29] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[30] (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[31] Sentencing Remarks [29], [34], [36]-[37].

[32] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ); DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ).

[33] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).

[34] [2008] QCA 19.

[35] Ibid [16] (Muir JA agreeing at [17], Mackenzie J agreeing at [18]) (citation omitted).

[36] [2023] VCC 68.

[37] [2023] VCC 1129.

[38] [2021] VSCA 50.

[39] In R v Buckman [2016] QCA 176, a total effective sentence of 36 months was imposed, with an order for release after 14 months upon entering a recognisance, for offending that involved obtaining $189,316 in contravention of s 134.2(1) of the Code. In Black v The Queen [2022] VSCA 125, a total effective sentence of 12 months' imprisonment was imposed, with an order for release after 130 days upon entering a recognisance, for offending that involved obtaining $120,390.15 in contravention of s 134.2(1) of the Code; this case involved significant mitigation by reference to Bugmy [2013] HCA 37; (2013) 249 CLR 571 and DPP v Herrmann (2021) 290 A Crim R 110; [2021] VSCA 160. In El Rakhawy [2011] WASCA 209; (2011) 214 A Crim R 124, a total effective sentence of 36 months was imposed, with an order for release after 20 months upon entering a recognisance; $121,559 was obtained in contravention of s 135.1 of the Code, which at the relevant time carried a maximum penalty of 5 years' imprisonment.