Director of Public Prosecutions (Cth) v Au

[2023] VCC 68

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01083

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

CARSON AU

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JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 January 2023
DATE OF SENTENCE:	2 February 2023
CASE MAY BE CITED AS:	DPP (Cth) v Au
MEDIUM NEUTRAL CITATION:	[2023] VCC 68

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – sentencing – defrauding the Pharmaceutical Benefits Scheme – registered pharmacist – general deterrence – a number of matters in mitigation – need for a sentence involving immediate imprisonment

Legislation Cited:      Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic)

Cases Cited:DPP (Cth) v Phan [2016] VSCA 170; Worboyes v The Queen [2021] VSCA 169; Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260; DPP v WRJ [2009] VSCA 174; R v TA [2003] NSWCCA 191; Mohamed v The Queen [2022] VSCA 136; The Queen v Pham (2015) 90 ALJR 13; DPP (Vic) v Dalgliesh (2017) 91 ALJR 1063; El Rakhawy v The Queen (2011) 214 A Crim R 124; Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act (NSW) 1999 No 1 of 2002 [2002] NSWCCA 518; R v Dennison [2011] NSWCCA 114; R v Lulham [2016] NSWCCA 287; DPP (Cth) v Carter [1998] 1 VR 601; DPP (Cth) v Alateras [2004] VSCA 214; R v Schwabegger [1998] 4 VR 649; DPP (Cth) v Parfrey [2010] VSCA 212; R v Verdins (2007) 16 VR 269; DPP (Cth) v Golic [2014] VSCA 355; DPP v Adams [2017] VCC 662; Markovic v R [2010] VSCA 105; R v Grewal [2021] NSWDC 360; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Gillan (1991) 100 ALR 66

Sentence:                  Imprisonment for 2 years with release after 8 months on a recognisance release order – s 6AAA declaration – 3 years’ imprisonment with release after 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K. Thornton	Commonwealth Director of Public Prosecutions
For the Accused	Mr M. Allen	Duxton Hill

HIS HONOUR:

Introduction

1Carson Au, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity.[1] The maximum penalty for this offence is 10 years’ imprisonment and/or a maximum pecuniary penalty of $126,000.

[1] Contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’).

2A ‘Form for the Purposes of Section 16BA’ was filed by the prosecution in relation to one further offence of Obtaining a Financial Advantage by Deception[2] between 17 August 2019 and 20 September 2019. You signed this form indicating your admission of guilt in respect of the offence. In these circumstances, the court may, ‘if it thinks fit’, take this offence into account in sentencing you.[3] I will return to this matter later in my reasons.

[2] Contrary to s 134.2(1) of the Criminal Code.

[3] Crimes Act 1914 (Cth), s 16BA(2).

Circumstances of Offending

3The prosecution opening was tendered on the plea[4] and is the unchallenged factual basis upon which you are to be sentenced. Your offending can be summarised as follows.

[4] Exhibit P1.

4The Pharmaceutical Benefits Scheme (‘PBS’) is a government subsidy scheme that provides for specified medicines and pharmaceutical products to be made available to eligible persons at significantly reduced costs. As a result of a valid PBS claim, an approved pharmacist is entitled to be paid a PBS payment for the supply of a pharmaceutical benefit to the patient.

5You have been a registered pharmacist since 2001 and approved to supply pharmaceutical benefits at Newton’s pharmacy from 2015. The bank account registered at this time for the receipt of PBS payments was held in your name.

6You used the prescriber details of nine medical practitioners and personal details of nine friends and family members without their knowledge to submit false PBS claims. The claims were for pharmaceutical benefits never prescribed by the listed PBS prescriber and never provided to the listed patient.

7Between 25 February 2018 and 20 June 2018, you entered false prescription details for 71 pharmaceutical benefits in the name of family members and friends into the pharmacy’s dispensing software. These details were checked and accepted by the PBS online claiming system and payment was initiated.

8Between 9 March 2018 and 29 June 2018, payments totalling $108,189.04 were deposited into your bank account, the details of these payments are contained in Annexure A to the Opening.[5] This is the conduct that constitutes charge 1. While there is only one charge, it is clear that you have been charged in respect of a course of conduct.

[5] Exhibit P1 at 5.

9It is apparent from Annexure A to the opening that the payments were made into your account promptly. On average, it took less than 14 days for the money to be transferred into your nominated account after you submitted the false claims. This suggests that there is minimal checking of claims by the Department beyond establishing that the claimant is a registered provider. This in turn reflects the high degree of trust inherent in the PBS scheme.

10The court was informed by the prosecutor that your offending came to light when a supplier of pharmaceutical products that was the subject of your claims notified the Commonwealth. This notification triggered an investigation.

11On 21 April 2021, you were interviewed by investigators and made full admissions. You told the investigators that you felt “so much pressure and…financial stress…with business debts”. You stated you made a “very poor error of judgment”.[6]

[6] Exhibit P1 at [19].

12You were not charged until January 2022. Between April 2021 and January 2022 you repaid the entire $110,461.68 to the Commonwealth. You borrowed money from a friend so that you could do this. You are still paying off that debt.

Further Offending in 2019

13In addition to the offending that is the subject of charge 1, between 18 August 2019 and 20 September 2019, while working as an authorised pharmacist, you made five further false PBS claims in the name of family members. As a result of these false claims you received PBS payments in the amount of $2,272.64 to which you were not entitled. This is the conduct comprising the s 16BA scheduled offence to which I have earlier referred.

14I have taken this further offending into account and have certified accordingly (see Crimes Act 1914 (Cth), s 16BA(8)).

Matters to which the Court must have regard (s 16A)

15In sentencing you for this offence I take into account the matters set out in Part 1B of the Crimes Act 1914 (Cth). In particular, I have had regard to s 16A(2) which sets out the non-exhaustive list of factors that must be taken into account as far as they are relevant and known to the court.

Nature and Circumstances of the Offence (s 16A(2)(a))

16The maximum sentence of imprisonment for 10 years indicates the serious nature of the offence of dishonestly obtaining a financial advantage from the Commonwealth.

17Ms Thornton for the prosecution characterised your offending as a serious example of this offence, having regard to:

(a)   The number of false claims and the period over which they were made;

(b)   The use of the names of family members and friends which potentially implicated them in your offending and violated their integrity;[7]

(c)   The ‘significant amount of money’ involved;

(d)   The further offending in 2019;

(e)   Your position as an experienced pharmacist with ‘intimate knowledge of the PBS claim system’; and

(f)    Your abuse of the trust the scheme placed in you as an approved pharmacist which necessarily relied on your honesty in submitting claims.[8]

[7] See DPP (Cth) v Phan [2016] VSCA 170 at [64].

[8] Outline of Crown Submissions on Sentence dated 19 December 2022 at [11].

18Mr Allen, who appeared on your behalf, conceded that your offending was objectively serious.[9]

[9] Outline of Defence Plea Submissions dated 18 January 2023 at [3].

19Considering the features of your offending identified by the prosecution, I accept that yours is a serious example of the offence against s 134.2 of the Criminal Code.

20Your further offending in 2019 as described in the s 16BA Notice underlines the seriousness of your offending.

Personal Circumstances

21You were born in Hong Kong, the youngest in a sibship of three. Your family life was stable and happy. Your family migrated to Caulfield South when you were aged 12 so you could attend school in Australia.

22You attended Caulfield Grammar School, flourishing and receiving excellent VCE results. You completed a Bachelor of Pharmacy at Monash University in 2000.

23You have a strong work history, working as a pharmacist since graduation. You became a registered pharmacist in 2001, and then went on to work in a variety of pharmacy-based roles.

24In 2015, when you were 36 years old, you purchased Newton’s pharmacy, the location of the offending. As commonly occurs with new business owners, business ownership placed significant financial stress on you to meet the repayments of the business loan. As a result of the charges, your registration as a pharmacist has been suspended. You are currently in the process of selling the pharmacy. 

25You have no prior criminal history and are of good character.

26You married your wife in 2007. She has no family in Melbourne other than you. You report that despite the challenges the two of you have faced, the relationship remains strong. Your wife was a teacher before having children. You have two children aged 13 and 9 and describe yourself as a committed and dedicated father. You provide financially for the family.

27You were aged between 39 and 41 at the time of the offending and are now 44.

Mental Health

28A report of Patrick Newton, psychologist was tendered on your plea.[10] Mr Newton assessed you on 12 September 2022 and 2 November 2022.

[10] Report of Patrick Newton dated 21 November 2022 (Exhibit D1).

29Mr Newton concludes that it was likely that you had developed an adjustment disorder with anxiety at the time of your offending. You were vulnerable to developing such elevated anxiety ‘by a combination of cultural factors, marital disharmony and personality vulnerabilities’.[11] Noting that there are no medical records to verify this, your reports to Mr Newton ‘suggest it is likely that [your] symptoms would have met DSM-5 criteria for an adjustment disorder with anxiety during 2018 and 2019’.[12]

[11] Exhibit D1 at [31].

[12] Exhibit D1 at [40(3)].

30Mr Newton expresses the view that, ‘assuming his reports are correct, his level of anxiety would have had a relatively mild (but discernible) effect upon his capacity for calm reflection and decision making’. He states that these factors would ‘certainly not have interfered with his understanding of the wrongfulness of his actions or their likely consequences’.[13]

[13] Exhibit D1 at [32].

31Mr Newton notes that you have received no treatment for any mental health condition and that your symptoms would not have met the criteria for a mental health disorder when he last examined you in November 2022.[14]

[14] Exhibit D1 at [40(5)].

32Mr Newton concludes that your ‘naivety to the custodial environment’ and your ‘divergence from the demographic background of most other inmates’ would be likely to make your adjustment to the custodial environment ‘somewhat more difficult than the typical prisoner’.[15]

[15] Exhibit D1 at [43].

33Late in 2022, you sought counselling from Ms Khai Lan Wong, a counselling psychologist. A report by Ms Wong dated 15 December 2022 is before the Court.

34You have attended five sessions with Ms Wong who has provided therapy ‘focused on clarifying, identifying and exploring information based on the nature of [your] upbringing within the context of immigrant history’.[16]

[16] Psychological Report of Khai Lan Wong dated 15 December 2022 (Exhibit D2) at [12] and [16].

35Ms Wong has administered a number of tests and concludes that you ‘would meet criteria for Normative Stress Reactions normalizing his legal situation of offending’.[17] Your current diagnosis is ‘a normative stress reactions [sic] in the context of stressor related condition’.[18]

[17] Exhibit D2 at [23(c)].

[18] Exhibit D2 at [23(d)].

36Ms Wong recommends continuing counselling and therapy.

Matters in Mitigation

Plea of Guilty

37You indicated your intention to plead guilty at the earliest stage. This is to your credit. In so doing, you have saved the time and resources of the prosecuting authorities and this Court and have spared witnesses the need to give evidence in court. As the Court of Appeal has explained, an offender who pleads guilty at present is entitled to an additional discount on sentence given the lengthy delays in the justice system that continue as a result of the pandemic.[19]

Remorse

[19] Worboyes v The Queen [2021] VSCA 169.

38There is no dispute that you are an offender who displays deep remorse and contrition for your offending. This is demonstrated initially through your co-operation with authorities, including your full and frank admissions during your interview.[20]

[20] Exhibit P1 at 4.

39In her report to the Court, Ms Khai Lan Wong observes that you feel shame and express remorse at your actions.[21] Importantly, this remorse extends beyond your own actions and the consequences personal to you and your family, and touches upon the very nature of the offending; Ms Wong notes that you acknowledge that your ‘actions are about ‘stealing’ the public’s trusts [sic]’.[22]

[21] Exhibit D2 at [18(g)].

[22] Exhibit D2 at [18(g)] (emphasis in original).

40Mr Newton echoes Ms Wong’s observations as to your demonstrated remorse.[23] Mr Newton reports that you ‘expressed [your] remorse openly, and [you] have acted upon that remorse’.[24]

[23] Exhibit D1.

[24] Exhibit D1 at [44].

41Mr Newton is referring, amongst other things, to the restitution you have made. This is a matter to your credit.

Delay

42Delay also has a part to play in moderating the sentence I impose. As the Court of Appeal has repeatedly emphasised, marked delay between the apprehension of an offender and the resolution of a matter is a factor that will mitigate sentence,[25] provided that the delay is not attributable to the offender.[26]

[25] See, eg, Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260.

[26] DPP v WRJ [2009] VSCA 174.

43Counsel for the Director tendered a chronology of events that I have relied on in assessing the extent to which delay plays a role in your case.[27] There are two periods of delay that arise in your case that I consider to be important in this sentencing exercise.

[27] Chronology dated 8 December 2022 (Exhibit P2).

44As I have already addressed, the conduct constituting charge 1 was committed between 25 February 2018 and 29 June 2018. The conduct giving rise to the scheduled offence was committed between 17 August and 20 September 2019.

45You were interviewed on 21 April 2021 and made full and frank admissions to the offending. However, you were not charged until 13 January 2022. In the intervening period, you had the spectre of criminal charges looming over you with no opportunity to answer for yourself or bring about a resolution. This is the first period of delay to which I refer.

46The second period of delay is the period between you being charged and the ultimate resolution of these proceedings. That is, the period between 13 January 2022 and today, when I sentence you.

47I accept in your case that the two periods of delay are not in any way attributable to your conduct. Indeed, it is to your credit that you accepted full responsibility for your conduct at the outset and have maintained this acceptance throughout the proceedings. Nor are these delays attributable to the prosecuting authorities - they are an unfortunate symptom of the profound effects the pandemic continues to have on the criminal justice system.

48I also accept that you have experienced significant anxiety and uncertainty over this period while your fate remained undetermined. It is this effect that warrants some modest reduction of the sentence I impose.

49The other effect of this delay is that it assists the court in assessing your prospects of rehabilitation. You have not further offended during this time which evidences your good prospects of rehabilitation. It also lessens the need for me to consider specific deterrence.

Extra-curial punishment

50A conviction for a criminal offence will often, but not always, result in collateral consequences for the offender. In your case, as your counsel submits:

[Mr Au] has already suffered loss of his registration as a pharmacist (with AHPRA having taken interim action to suspend his registration), loss of business (with [Mr Au] feeling compelled to sell his business in light of the suspension of his registration and the likely further disciplinary action), and loss of reputation within the pharmacy profession[28]

[28] Outline of Defence Plea Submissions dated 18 January 2023 at [4.9].

51Your counsel submits that these matters should be accorded significant weight as part of the sentencing exercise.

52Whilst I accept that the loss of your registration, either temporarily or permanently, is a weighty matter, I do not accept your counsel’s submissions that it should be accorded significant mitigatory weight. I consider the loss of your professional position to be a natural, if not necessary, consequence of your offending. As the New South Wales Court of Criminal Appeal held in R v TA:

Since abuse of the applicant's professional position is (unarguably) a serious aggravating factor, I do not see how the fact that this position will be foreclosed to him should be a significant mitigating factor. It is a necessary consequence of the requirement that the responsible professional body ensure that the public is protected, and is not imposed as a punishment[29]

[29] R v TA [2003] NSWCCA 191, [32] (emphasis added).

53The Court was also referred to the Australian Health Practitioner Regulation Agency Registration Standard: Criminal History (‘the Standard’).[30] This Standard sets out the ‘factors the National Board will consider in deciding whether a health practitioner’s criminal history is relevant to the practice of their profession under the Health Practitioner Regulation National Law as in force in each state and territory’.[31]

[30] AHPRA Registration Standard: Criminal History dated 1 July 2015 (Exhibit P3).

[31] Exhibit P3 at 2.

54Paragraph four of the Standard provides that, in deciding whether a health practitioner’s criminal history is relevant to the practice of their profession, the Board will consider:

The sentence imposed for the offence.

The weight the Board will place on the sentence will generally increase as the significance of the sentence increases…[32]

[32] Exhibit P3 at [4].

55I have taken into account the disciplinary proceedings by AHPRA in the sentence that I impose.

Impact on your family – Crimes Act 1914, s 16A(2)(p)

56Your counsel submits that a sentence of immediate imprisonment would have a ‘profound adverse effect on [your] wife and children.[33]

[33] Outline of Defence Plea Submissions dated 18 January 2023 at [69].

57In assessing this aspect of the case, I accept that the common law requirement of ‘exceptional circumstances’ need not be met for family hardship to be taken into account in sentencing for Commonwealth offences.[34]

[34] Mohamed v The Queen [2022] VSCA 136 at [93]; Crimes Act 1914 (Cth), s 16A(2)(p).

58The evidence before the Court is that your wife considers, not surprisingly, that having you in the family ‘is important to [her] and the two young ones’.[35] She explains that ‘the children need the father and I need my husband to be part of the family’. While I of course accept this, I note that her description of your role in the home is that of a fairly ‘hands off’ father who works long hours and relies on his wife to be primarily responsible for the household and the raising of the children. Ms Lee is a self-described ‘full time housewife’ and she describes you as the ‘sole income earner’. Your assistance is important to her ‘on the weekends or during school holidays’.

[35] Letter to the Court from Ms Weng Ian Lee dated 10 November 2022.

59While I have no doubt that your absence from the household would be significant, I do not accept your counsel’s description of the probable effect on your family as ‘profound’. I discount the concerns expressed by your family friend, Ms Grace Wong, that your family ‘will break down’ if you are imprisoned[36] in light of the evidence of your wife who I consider to be far better placed to describe the likely effect of your temporary absence from the family home.

[36] Letter to the Court from Ms Grace Wong dated 12 January 2023.

60Without intending to appear inhumane, I consider that impacts of the kind revealed by the evidence on your family are ‘the inevitable corollary of [your] having been found guilty of a serious crime and sentenced to a term of imprisonment’.[37] They do not weigh heavily in the sentencing synthesis in this case. Nevertheless, I have taken them into account in mitigation of your sentence under s 16A(2)(p) of the Crimes Act 1914 (Cth).

[37] Mohamed v The Queen [2022] VSCA 136 at [99].

61I have also taken into account the effect on you of any separation.

Prospects of Rehabilitation – S 16A(2)(n)

62As to your prospects of rehabilitation, Mr Newton in his concluding comments opines that the fact that you have accepted responsibility for your actions and demonstrated remorse by making restitution ‘bode well for your long-term rehabilitation and adjustment’.[38] I accept that, as Mr Newton says, you respect lawful authority.[39]

[38] Exhibit D1 at [41].

[39] Exhibit D1 at [40].

63Mr Newton considers that the prospects of you experiencing any further involvement with the criminal justice system ‘would seem to be relatively small’.[40]

[40] Exhibit D1 at [44]

64Ms Wong also considers that there is no indication that you are a risk of reoffending.[41]

[41] Exhibit D2 at [24].

65Accordingly, I accept your counsel's submission that your prospects of rehabilitation are excellent.

Current sentencing practices

66Both parties have referred the Court to sentences imposed in other cases. A number of the cases involve appellate decisions. It is well established that, in sentencing for a Commonwealth offence, a court such as the County Court should have regard to sentences imposed in comparable cases throughout the Commonwealth.[42]

[42] The Queen v Pham (2015) 90 ALJR 13 at [23].

67The prosecution provided the Court with a schedule of six cases involving Medicare and PBS fraud. Such tables are of limited assistance as each case turns on its own facts. Comparable sentences may inform the task of sentencing but do not fix quantitative boundaries.[43]

[43] DPP (Vic) v Dalgliesh (2017) 91 ALJR 1063 at [82]-[84].

68What does emerge from an examination of those cases is that, absent some compelling reason, a sentence of imprisonment, with actual time to be served, has generally been imposed to give effect to the sentencing purpose of general deterrence. It is necessary to refer to one of the cases in the prosecution table and one further case. Both involved decisions by intermediate appellate courts.

69The first case is the oft-cited matter of El Rakhawy v The Queen.[44] The appellant was a medical practitioner convicted of 11 counts of dishonestly obtaining a benefit from Medicare. The maximum sentence that could be imposed on each count was five years’ imprisonment. The total quantum of fraudulent claims was $121,599.90 and the offending occurred over a period of two years. The appellant committed the offences out of the need ‘to maintain a lifestyle that he was clearly financially incapable of supporting’ and the ‘need to service his large borrowings’.[45]

[44] (2011) 214 A Crim R 124.

[45] (2011) 214 A Crim R 124 at [35].

70Notwithstanding a range of matters in mitigation that the appellant could point to, including an early plea of guilty, co-operation with authorities, no prior convictions and the making of restitution, Hall J of the Supreme Court of Western Australia (Court of Appeal), with whom the other members of the Court concurred, held:

… 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[46]

[46] El Rakhawy v The Queen (2011) 214 A Crim R 124 at [36].

71A total effective sentence of imprisonment for four years was reduced to three years with release on a recognisance release order after 20 months.

72The second case is a decision by the Victorian Court of Appeal in DPP (Cth) v Phan. A medical practitioner had been sentenced to 3 years’ imprisonment to be released after 16 months for defrauding Medicare. The amount defrauded exceeded $800,000 and the offending occurred over a period of six years.

73Before the sentencing Judge, the offender had relied on a range of mitigating matters similar to the ones raised on your behalf, including his lack of prior convictions, plea of guilty, delay and good rehabilitation prospects.[47] In upholding a prosecution appeal and increasing the sentence to 4 years’ imprisonment with a non-parole period of 2 years, the Court observed that:

… some of the matters going in mitigation appear to be characteristic of offenders such as the [offender]. For that reason, they have often been accorded lesser weight than might otherwise have been expected.[48]

[47] DPP (Cth) v Phan [2016] VSCA 170 at [66]-[73].

[48] DPP (Cth) v Phan [2016] VSCA 170 at [74] (Ashley JA).

74Ashley JA, with whom Tate and Santamaria JJA agreed, emphasised the predominance of general deterrence as a sentencing consideration in ‘a case of this kind’.[49] That is, cases in which members of the medical profession breach the trust reposed in them by the Commonwealth and community broadly. His Honour noted the observations of the sentencing judge that the ‘operation of the Medicare system is dependent entirely on trust in the practitioners who are permitted to bill Medicare with little supervision or restriction’.[50]

[49] DPP (Cth) v Phan [2016] VSCA 170 at [76].

[50] DPP (Cth) v Phan [2016] VSCA 170 at [22].

Submissions on Sentence

75In helpful and detailed submissions, your counsel submits that ‘giving proper weight to the constellation of extenuating factors in this case, the principles of sentencing and the interests of justice would be best served by the imposition of sentence that would avoid an immediate custodial element’. According to Mr Allen, ‘such a sentence would be capable of meeting the needs of general deterrence, punishment and denunciation, whilst also best promote Mr Au’s ongoing rehabilitation, which, in turn, serves the public interest’.[51]

[51] Outline of Defence Plea Submissions dated 18 January 2023 at [77]-[79].

76The Commonwealth Director submits that, having regard to the objective seriousness of the offending and even considering the matters of mitigation, comparative sentences in similar cases ‘indicate that a term of imprisonment, with actual time to be served, is warranted in all the circumstances’.[52]

[52] Outline of Crown Submissions on Sentence dated 19 December 2022 at [40].

Consideration

77As noted earlier in these reasons, I have determined that it is appropriate to ‘take into account’ the further offending identified in the Form 1 filed by the prosecution. The relevant authorities to which the Court has been referred by the prosecution establish the following propositions in relation to what this means in practice:

(a)   The statutory maximum penalty for the substantive offence is not affected by the application of s 16BA;[53]

(b)   There is no requirement for the Court to quantify the effect of taking the further offending into account;[54]

(c)   No separate penalty is to be imposed;[55]

(d)   It will often be necessary to accord specific deterrence greater weight in the sentencing calculus for the principal offence by reason of the additional offending;[56]

(e)   A sentencing court must impose a sentence for the totality of the criminality before it, reflected in both the principal offence for which the offender is to be sentenced, and any further offences which are to be taken into account;[57] and

(f)    It is wrong as a matter of principle to expect that any increase in sentence brought about by taking into account an admitted offence can only be small. It is incorrect that little by way of additional penalty should be imposed.[58]

[53] See Crimes Act 1914 (Cth), s 16BA(4).

[54] Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act (NSW) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [66].

[55] Crimes Act 1914 (Cth) s 16BA(5).

[56] R v Dennison [2011] NSWCCA 114 at [51].

[57] R v Lulham [2016] NSWCCA 287 at [57].

[58] R v Lulham [2016] NSWCCA 287 at [57].

78I have applied these principles in determining the appropriate sentence in your case.

79The sentencing purposes of general deterrence, punishment, and denunciation assume particular importance in the sentencing synthesis in this case.

80As recently explained by the Victorian Court of Appeal, ‘there is no doubt that general deterrence is a predominant sentencing consideration in a case of this kind’.[59]

[59] DPP (Cth) v Phan [2016] VSCA 170 at [76].

81I accept that specific deterrence is of less significance in your case given there is little likelihood that you will re-offend. However, in accordance with the authorities cited above, your further offending in 2019 means that there is a greater need to specifically deter you than would otherwise be the case.

82As noted earlier, the authorities to which the court was referred establish that ‘[s]ystematic frauds committed by professionals such as doctors or lawyers and involving large sums of money are viewed as being particularly serious. They are an abuse of the privilege and responsibility that a member of a profession has and they can impact adversely on the reputation of that profession as a whole’.[60]

[60] DPP (Cth) v Phan [2016] VSCA 170 at [77].

83This principle has been applied to cases involving pharmacists.[61]

[61] See, for example, R v Saurels (District Court of Qld, 13 November 2020) at 3.

84For these reasons, absent ‘substantial mitigating circumstances’[62], ‘very special circumstances’[63] or ‘circumstances that are sufficiently exceptional’,[64] a sentence of imprisonment to be served immediately is usually the correct disposition in such cases.

[62] DPP (Cth) v Carter [1998] 1 VR 601 at 610.

[63] R v Purdon (NSWCCA, 27 March 1997).

[64] DPP (Cth) v Alateras [2004] VSCA 214 at [26].

85Mr Allen on your behalf referred the court to a number of cases involving serious frauds where sentences that did not involve immediate imprisonment were imposed. I have read each of the cases and consider that they are distinguishable from your own. It is necessary briefly to summarise why that is so.

86The first of the cases to which your counsel referred was DPP (Cth) v Carter.[65] This was a case where the offender pleaded guilty to under-declaring and failing to pay sales tax totalling $659,719 payable by his company. The Court characterised the circumstances of the offending as ‘unusual’.[66] The most significant of these was that it was not the offender’s purpose to evade the payments of tax to enrich himself.[67]

[65] DPP (Cth) v Carter [1998] 1 VR 601.

[66] DPP (Cth) v Carter [1998] 1 VR 601 at 608 (Ormiston JA) and 611 (Phillips JA).

[67] DPP (Cth) v Carter [1998] 1 VR 601 at 608.

87The ‘lengthy and substantially unexplained delay between detection and prosecution’ was the principal reason why a sentence of immediate imprisonment was not imposed in the case of R v Schwabegger.[68]

[68] [1998] 4 VR 649 at 659 (Vincent AJA).

88The ‘unique’ circumstance in the case of DPP (Cth) v Alateras was that the offender, who was an employee of Centrelink, ‘had played the role of a “self-appointed good Samaritan”’ when he defrauded his employer and gave all of the money he obtained to welfare recipients.[69] He derived no personal benefit.

[69] [2004] VSCA 214 at [4] (Eames JA) and at [11] (Nettle JA).

89The 67-year-old offender in the case of DPP (Cth) v Parfrey[70] had a very low IQ and suffered from a range of mental and physical conditions. The court accepted these conditions both reduced his moral culpability for the offending and meant that his time in custody would be particularly onerous. The circumstances were characterised as ‘very particular’.[71]

[70] [2010] VSCA 212.

[71] [2010] VSCA 212 at [38].

90In the ‘unusual’ case of DPP (Cth) v Golic,[72] the offender’s moral culpability was ‘substantially reduced’ by application of the Verdins[73] principles. The offender had a long history of mental illness. In such cases, the need for both denunciation and general deterrence is moderated.[74]

[72] [2014] VSCA 355 at [23] and [39].

[73] R v Verdins (2007) 16 VR 269.

[74] R v Verdins (2007) 16 VR 269 at [32.1] and [32.3].

91The ‘truly exceptional’ case of DPP v Adams,[75] involved an application of the ‘family hardship’ principle described in the case of Markovic v R.[76] The offender’s 17-year-old daughter was seriously ill and his wife and other child were also ill. The Court accepted that sentencing him to immediate imprisonment would cause exceptional family hardship to the extent required by Markovic.[77]

[75] [2017] VCC 662 at [50].

[76] [2010] VSCA 105.

[77] [2010] VSCA 105.

92The facts in the case of R v Grewal,[78] were quite similar to your case. A pharmacist defrauded the PBS in the amount of $365,922 to protect the investment made by her family members in a pharmacy. She was sentenced to an Intensive Correction Order under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring her to perform 350 hours of community service work and submit to supervision by a Community Corrections officer. The sentencing Judge accepted, on the basis of extensive medical evidence, that the offender had suffered for many years from psychiatric illness.[79]

[78] [2021] NSWDC 360.

[79] [2021] NSWDC 360 at [26]-[31].

93Although you are entitled to the benefit of the mitigating factors noted earlier in these reasons, I consider that your case does not have the ‘special’ or ‘exceptional’ features that are apparent in the cases to which the court has been referred by your counsel.

Deterrent effect of a suspended sentence

94Mr Allen also noted that in a number of these cases, the deterrent effect of a suspended sentence of imprisonment was recognised.[80] I have read those cases and the further authorities upon which they rely, an important one of which is R v Gillan,[81] a decision of the Full Court of the Federal Court. The offender in that case was a resident of Norfolk Island and, as a result of his offending had to leave the Island ‘in shame’.[82] In imposing a wholly suspended sentence in place of the deferred sentence that had been imposed by the sentencing Judge, the Full Court concluded that ‘very much greater stigma attaches to a sentence of imprisonment, albeit one that is suspended in its operation, than to an order for release without passing sentence’.[83] That may readily be accepted. However, that is not the choice that faces this court. The question here is whether sentencing you to a wholly suspended sentence will have an adequate deterrent effect on others who may be minded to offend. After careful consideration, I have concluded that it will not.

[80] See Elliot v Harris (No 2) (1976) 13 SASR 516 at 527; R v Gillan (1991) 100 ALR 66 at 71; DPP (Cth) v Carter [1998] 1 VR 601 at 607-8.

[81] (1991) 100 ALR 66.

[82] (1991) 100 ALR 66 at 71.

[83] R v Gillan (1991) 100 ALR 66 at 71.

95I consider that the need for general deterrence in this case can only be met by imposing on you a sentence of imprisonment with a requirement that a modest part of that sentence be served immediately.

Sentence

96Carson Au, on Charge 1, dishonestly obtaining a financial advantage by deception from a Commonwealth entity, and taking account of the additional offending, you are convicted and sentenced to 2 years’ imprisonment commencing today, 2 February 2023.

97I make an order under s 20(1)(b)(i) of the CommonwealthCrimes Act 1914 that you be released after you have served eight months in custody upon a recognisance in the amount of $5,000 without surety on the following conditions:

i.that you be of good behaviour for a period of two years;

ii.that you are to be supervised by a probation officer and obey all reasonable directions of the probation officer; and

iii.that you not travel interstate or overseas without the written permission of the probation officer.

98Under Section 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your plea of guilty, I would have sentenced you to 3 years’ imprisonment with a recognizance release order releasing you after 12 months. That is to be noted in the records of the court.

99Mr Au, I need to explain to you the effect of the orders I have made. You are going into custody today. You will be released after you have served 8 months. That will be on 1 October 2023. You must be of good behaviour for 2 years. You must comply with the conditions – i.e. follow all of the directions of the probation officer.

100If you fail to comply with a condition, you can be brought back before this court. If a Judge considers that you have failed to comply without a reasonable excuse, they can fine you up to $1,000; extend the period for which you are to be of good behaviour; revoke the order and make a different order which may involve ordering you to be imprisoned for the term I have indicated today; or take no action.