CDirector of Public Prosecutions v Kumar

[2023] VCC 1577

*

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22 00546

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

v

RAVINISH AMAL KUMAR

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2023 (sentence indication), 28 July 2023
DATE OF SENTENCE:	1 September 2023
CASE MAY BE CITED AS:	CDPP v KUMAR
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE

Subject:Dishonestly obtained financial advantage by deception

Catchwords:              podiatrist – Medicare fraud – loss to Commonwealth $180,664 – attempt to obtain $40,876 – 3943 false claims lodged over three-year period – family hardship – reparation - delay

Legislation Cited:      

Cases Cited:

Indication:Imprisonment for three years to be released forthwith on reconnaissance

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms C. Nicholson	Office of Public Prosecutions
For the Accused	Mr C. Hooper (Plea) Ms Z. Garde-Wilson (Sentence)	Garde Wilson Lawyers

HIS HONOUR:

1Ravinish Amal Kumar, you have pleaded guilty to 4 charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity.

2Your offending was very serious[1].

[1] The circumstances are fully set out in the agreed facts for sentencing indication hearing, exhibit A

3It occurred over a lengthy period of time, between June 2014 and February 2018, when you lodged nearly 4,000 false podiatry claims with Medicare in two episodes, one for two months, and then the second, for three years; with a year's break in-between, when you had time to reflect on your conduct. 

4You received nearly $180,000 and but for your own mistakes you would have received a further $40,000 or thereabouts.

5Each of the four charges forms part of a systematic and planned course of conduct consisting of multiple criminal acts of deception.

6Your conduct was consistent and ongoing, and you used your position of advantage as a registered health provider to abuse the Medicare system, which relies on participants’ trust for its proper administration. You also abused the trust of your patients who relied on you to submit honest claims in order to protect their entitlements.

7I have noted our motivation for your offending[2].  It is hardly an extenuating circumstance. I assess your moral culpability as high.

[2] As you told Luke Armstrong, consultant psychologist, who assessed you on 6 March 2023, Exhibit 9

8Overall, I assess the objective seriousness of your offending to be a mid-range example of the offending of the type.

9You have no criminal record.

10Justice Hall of the WASCA said in a case of El Rakhawy v The Queen:

“… it is well-established that offences involving serious dishonesty committed over a period of time and involving substantial sums of money will ordinarily result in a term of immediate imprisonment. This is because in such cases the weight to be given to general deterrence is increased and that given to personal factors is reduced” [3]

[3] [2011] WASCA 209, per Hall J at [36]

11However, I have found, in your case, a number of compelling mitigating factors which moderate the sentences I shall impose.

12You are entitled to a demonstrable sentencing benefit for your guilty plea. 

13Your voluntary reparation, which you made before I indicated I would impose a sentence which did not require your immediate incarceration, demonstrates a very high degree of contrition.

14Delay is also a mitigating factor.  It is more than five years since you offended.  In the meantime, you have married. You have a capable and supportive wife who gave impressive evidence before me.  You have had a child together, you have bought a home together, and you have re-established your podiatry practice without access to direct Medicare billing.

15You have no criminal record and I find, notwithstanding the duration and multiplicity of your offences, you are unlikely to reoffend again.

16In my view, your incarceration now would necessarily interrupt your rehabilitation, which you have substantially progressed, to the disadvantage of the community and you.

17I accept your wife's evidence, because of their particular debilitative conditions,  your son and her are substantially dependent on you for financial support and physical care.  I accept your incarceration would cause them significant hardship, which warrants mitigation of your sentence.

18After careful consideration of all the evidence and submissions put before the court[4], I have decided a sentence of imprisonment with your immediate release on recognisance can achieve all sentencing objectives in your case.

[4] By both prosecution and defence

19You should understand Mr Kumar the disposition I propose is not a 'get out of gaol free' card.  You will have a three-year prison term hanging over your head for a period of three years.  I will impose rehabilitative conditions to the recognisance: one relating to continuing counselling; and second, supervision which will be a constant reminder to you that you have committed serious crimes and you must not commit them again.

20Please stand Mr Kumar.

21By the sentence I impose, I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation

22Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,

23On Charge 3, dishonestly by deception obtaining a financial advantage, namely Medicare benefits you are sentenced to 2 years and nine months' imprisonment. This sentence is to commence today.

24On Charge one, dishonestly by deception obtaining a financial advantage, namely Medicare benefits, you are sentenced to 3 months' imprisonment. This sentence is to commence on 1 April 2026.

25On Charge 2, attempting to dishonestly by deception obtain a financial advantage, namely Medicare benefits, you are sentenced to 1 month's imprisonment. This sentence is to commence today.

26On Charge 4, attempting to dishonestly by deception obtain a financial advantage, namely Medicare benefits, you are sentenced to 10 months' imprisonment. This sentence is to commence on 1 November 2025.

27By the fixing of the commencement dates, I intend that one month of your sentence on Charge 1 and two months of your sentence on Charge 4 should be served cumulatively upon the sentences I have imposed on Charges 3 and 2 and each other.

28Your total effective sentence is three years' imprisonment.

29Under paragraph 20(1)(b) of the Crimes Act 1914 (Cth) I order you be released forthwith upon giving security by reconnaissance of $2,000 to comply with the following conditions:

(a)   you are to be of good behaviour for three years

(b)   you are to comply with the following further conditions, during the period of three years

(i)you are to be subject to the supervision of a probation officer appointed by Community Correctional Services, Victoria

(ii)you must obey all reasonable directions of the probation officer

(iii)you are not travel interstate or overseas without the written permission of the probation officer; and

(iv)you must participate in ongoing psychological counselling as recommended by a psychologist or general practitioner

(c)   you must report to Box Hill Community Correctional Services at 703 Station Street, Box Hill within seven days of the making of this order

30Mr Kumar, I am required to explain the purpose and the effect of the proposed order

(a)   the consequences that may follow if you fail, without reasonable cause or excuse to comply with the conditions of the proposed order; and

(b)   any reconnaissance given in accordance with the order may be discharged or varied

31I am imposing a total effective sentence of three years' imprisonment in a form that allows you to stay in the community and not immediately go to gaol.

32You must not commit any further offending and you must comply with the conditions I propose during the three-year period.

33If you do not fulfil the conditions, serious consequences can follow. You could be charged with a breach, and you would be liable to be imprisoned for a period of up to three years, instead of serving your sentence in the community

34I declare, but for your of plea of guilty, I would have imposed a total effective sentence of four years' imprisonment and fixed a minimum non-parole period of two years and six months.

35You have made full reparation. Nevertheless, section 21B of the Crimes Act (Cth) requires me to make a reparation order so that your payment can be disbursed to the relevant Commonwealth entity.

36I order you pay reparation to the Department of Health and Aged Care in the sum of $180,655.40.

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