Director of Public Prosecutions (Cth) v Ward

[2023] VCC 407

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00126

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

SARAH WARD

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2023, 15 March 2023
DATE OF SENTENCE:	17 March 2023
CASE MAY BE CITED AS:	DPP (Cth) v Ward
MEDIUM NEUTRAL CITATION:	[2023] VCC 407

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:                    Sentencing - dishonestly obtaining a financial advantage from a Commonwealth entity - plea of guilty

Legislation Cited:           s16A(2)(a), (2)(p) Crimes Act (Cth), s6AAA Sentencing Act 1991

Cases Cited:R v Verdins 2007 VSCA 102, Brown v R [2020] VSCA 212

Sentence:2 years  imprisonment. Recognizance Release Order after serving 12 months imprisonment. To be of good behaviour for 12 months, the remainder of the sentence. Recognizance Order in the sum of $1,000.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr A. Murphy	Ms R. Hobbs Office of Public Prosecutions
For the Accused	Mr M. Allen	Ms A. Bebbington Bebbington Lawyers

HIS HONOUR:

1Sarah Naomi Ward, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage from a Commonwealth entity.  The single
rolled-up charge relates to 1,609 false patient claims with Medicare made by you between 26 March 2019 and 1 April 2020.  The facts of your offending are set out in Exhibit A, the Crown plea opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and sentence you on the facts set out therein.

2Very briefly stated, whilst working as a receptionist at the Melbourne Digestive Centre, a specialist medical practice in Noble Park, you used your position of trust to make false patient claims in both your name and in the name of your husband, utilising a Medicare Easyclaim terminal operated by that practice.  Seven hundred and eighty-one false claims were made in your name and 828 in the name of your husband.  In a little over 12 months, you obtained $181,121.75 fraudulently.

3Medicare detected your fraudulent conduct in May 2020.  You declined a formal interview, and you were charged in July 2021 and indicated a plea to this one rolled-up charge at committal mention in February 2022.  You repaid the full $181,121.75 at that time.

4You have a significant prior criminal history.  On 17 August 2017, you were convicted and sentenced to a 12-month community corrections order at Melbourne Magistrates' Court for one charge of obtaining property by deception.  That offence related to fraudulent manipulation of patient claims in 2015 whilst you were employed at Cabrini Hospital.  You obtained $29,981.96 in fraudulently lodged medical rebates.

5You are now 31 years of age, being born in January 1992.  You are married with two children, aged three and 12 months.  Your personal history is set out in the submissions of your counsel, Exhibit 1, and the psychological report of Patrick Newton, Exhibit 4.  You grew up in Endeavour Hills the only child to a chef and a hospitality worker.  Your family experienced some financial difficulties because your father apparently gambled and spent money impulsively.  Your parents separated just before your Year 12 exams, causing you considerable stress.

6You completed your final two years at Caulfield Grammar, achieving average results.  You then completed an Advanced Diploma of Justice and partially completed an Arts degree at Monash.  Subsequently, you have worked in medical administration.  You spent five years at Cabrini before being terminated for your fraudulent activity in 2016.  You then obtained employment at the Melbourne Digestive Centre but were again terminated because of the offending for which I am to sentence you.

7You have been with your husband since 2010.  You married in 2016, and as I said, you have two children.  Your youngest child is just 12 months old.  A significant issue on your plea was whether your 12 month old would be able to join you in custody under the Living with Mum program operated by the Department of Justice and Community Safety.  Exhibit 9, a letter from that department, confirms that your application to have your 12 month old live with you in custody has been approved subject to the conditions set out in that letter, and your counsel inform me that you have accepted those conditions.

8This development is significant.  Your 12 month old is still apparently being breastfed, and separation from you would have increased the family hardship resultant upon your imprisonment.  Your husband and son will obviously suffer whilst you are in custody but not in any exceptional way, but I do take that fact into account in sentencing you.

9You continue to enjoy the support of your parents, your husband and your husband's family.  Exhibits 5 and 6 were references from your mother and your husband.  Since your most recent offending, you have found employment at a psychology practice however have been on maternity leave for 12 months.  That employer did not know of this offending, and it seems certain to me that you will lose your job after you are imprisoned.

10Once you were charged with this offending, you were able to raise funds and totally repay the $181,121 you fraudulently obtained.

11Your offending is obviously serious.  It involved planning, sophistication and was repetitive and long-lasting.  The amount fraudulently obtained is significant.  You flagrantly breached the trust placed in your to honestly carry out your employment duties.  Your offending was motivated by greed and not by need.  You told your psychologist, Patrick Newton, that you believed you were inadequately paid and wanted to keep up with your friends.  You wanted better clothing for your children and a better car.

12The fact that your offending represents a lengthy course of conduct is relevant to the assessment of the seriousness of your offending.  Your prior criminal history demonstrates you to be totally undeterred by your prior experience with the justice system.  Less than a year after completing your community corrections order for similar offending, you reoffended in a far grander scale.

13I sentence you in accordance with the principles set out in s16 of the
Crimes Act (Cth) as set out in s16A(2)(a), (2)(p).  I have regard to principles of totality and sentencing consistency.

14I take into account in your favour your plea of guilty.  That plea was entered at the earliest stage.  Your plea has significant utilitarian value, and it spares the court and the community the time and expense of a criminal trial.  The value of that plea is increased because of the effect the COVID-19 pandemic has had upon our criminal justice system.

15I also take into account in your favour your total repayment of the funds fraudulently obtained.  Although any offender cannot buy his or her way out of trouble, repayment evidences some contrition and provides a favourable financial outcome for the Commonwealth.

16There has been some delay in having your case finalised.  Although your offending was detected in May 2020, the investigation took some months, not surprisingly, and you were not charged until July 2021.  There were disruptions to the committal process because of COVID, and at the final committal mention in February 2022, you pleaded guilty.  A plea hearing in this court listed for July last year could not proceed, again because of COVID.

17You were finally to be sentenced nearly three years since your offending was discovered.  I accept that you have experienced anxiety and uncertainty as to your future during that period of time, having these matters hanging over your head.  The evidence also establishes that you suffer from anxiety and depression.  I accept that those conditions will make your time in custody more onerous for you than it would for someone without those issues.  I also accept that it is possible that your anxiety and depression may be adversely affected by your experiences in custody.  I take those factors into account in sentencing you.

18Much time was devoted to the issue of your mental state and to the suggested application of the principles set out in Verdins[1]' case in this particular case.  Your counsel, Mr Allen, initially relied upon the report of Patrick Newton, Exhibit 4, to found submissions set out at paragraph 36.2 of his lengthy written submissions tendered on your plea.  He says:

She was suffering from prominent traits of cluster B personality disorders which were entrenched, deeply problematic and which underpinned her experience of anxiety.  She was affected by chronic issues related to social anxiety and social esteem.  This manifested in a preoccupation to show people that she was successful and to keep up with the affluent lifestyles on social media.

[1] R v Verdins 2007 VSCA 102

19As Patrick Newton explains, those factors contributed to her offending.  Building on her early experiences, Ms Ward concluded that unless she could demonstrate overtly her worthiness and accumulating the external trappings of success, she would be destined to experience recurrent rejection and so remain on the periphery of social groups as she had during her youth.

20The strength of these concerns increased significantly once her first child was born, since she feared she would not be able to present herself as successful and to provide for her child in a manner similar to the children of her more affluent friends.  He too would be excluded and hence suffer the same problems she had as a young person.  Lacking access to resources in her own right, Ms Ward seems to have reasoned that she must either take advantage of the situation to enhance her ability to present an affluent appearance to others or else be doomed to face continued rejection and ostracism.

21On this basis, she rationalised each instance of offending conduct, both past and current, by reasoning that as the ends to which her offending was directed – that is, assisting her family – were good, this compensated for the fact that the means she used were unlawful and involved the betrayal of trust.  That is, her desire to meet her own financial desires took precedence over other moral and ethical considerations whereas her use of the money for her family allowed her to rationalise and excuse the self-aggrandizing aspects of her behaviour.

22As addressed below, Mr Allen submitted it would be submitted that the evidence of Ms Ward's mental conditions at the time of the offending attracts the principles of Verdins.  At paragraph 68 of his initial submissions, Mr Allen submitted that Ms Ward's personality disorders contributed to her offending and that the principles of Verdins apply to reduce her moral culpability and moderate the weight of deterrence in the sentencing synthesis.

23On the first day of your plea, Mr Allen withdrew that submission after Mr Newton provided an addendum report.  In that report, Mr Newton answered the question he was asked:  'Is it likely that Ms Ward's condition contributed to the offending by impairing her ability to exercise appropriate judgment or in any other way?  If so, how and to what extent?  Please explain'.  He said in Exhibit 7, his addendum report:

As set out in my December 22 report, Ms Ward presents with significant maladaptive personality traits.  Traits are defined as stable patterns of behaviour, thought, emotions, interpersonal reactions and self-perceptions which remain relatively constant over time and which present in many very different circumstances.  In Ms Ward's case, she presents primarily with maladaptive traits in the narcissistic and antisocial domains of personality.  Those maladaptive traits result in a systematic skewing of both her
self-evaluation and her attitude to those around her.

Ms Ward's narcissistic traits have a predictable and clear impact on her self-evaluation and her perspective of other people.  She is apt to overestimate her own abilities and to lack empathy for others.  On the basis of such beliefs, Ms Ward underestimates the gravity of dishonesty or other expedient actions she might take, tending to see such conduct as being justifiable because she is special and because it assists her to overcome the unfairness which would otherwise prevent her from achieving the success that is her due.  She is thus less likely to experience guilt or shame in regard to dishonest conduct and hence has a lower degree of inhibition with regard to such behaviour.

Ms Ward also presents with prominent antisocial traits.  They manifest in a cynicism about the motivation of others, an expedient approach to moral decision-making and a belief that she must take such advantage as is presented to her or risk being exploited by others.

The combination of antisocial and narcissistic traits is such that they reinforce and intensify each other, leading to a relatively entrenched perspective on interpersonal and ethical matters.  Both her narcissistic and antisocial personality traits are apt to skew Ms Ward's judgment in systematic ways.  They influence her perception of her offending, her own sense of guilt and remorse for her conduct and her capacity to appreciate the effects of her conduct on others.  In Ms Ward's case, these traits are accompanied by concomitant histrionic traits and borderline traits which further impair her behavioural regulation.

None of these traits, either individually or in combination, is sufficiently severe to reach the level of a personality disorder; that is, each of these traits is relatively mild, has a relatively mild impact on Ms Ward's cognitive ability.  More generally, Ms Ward's level of general adjustment is not sufficiently impaired to warrant a diagnosis of personality disorder.

24Your plea was adjourned to 15 March to enable investigation of the issue of your child's attendance at prison with you.  In the intervening period, you consulted Dr Michael Maloney, a psychiatrist, who provided a report, now Exhibit 10.  At p4 of that report, after seeing you on one occasion, Dr Maloney diagnosed you as suffering from a social and generalised anxiety disorder and a borderline personality disorder with obsessive-compulsive personality traits.  He opined:

Whilst in my opinion Ms Ward's behaviour is clearly not impulsive but well planned, it is driven by her borderline personality traits, her lack of appropriate training how to manage negative emotions.  Her obsessionality [sic] has provided her with a strategy which momentarily helps her feel better about herself, her life, a momentary empowerment.  Her offending is, in essence, passive hostility towards her employer.

In relation to the reports from the two psychologists, in essence, their formulation is similar to mine although they stop short of defining her personality issue as a disorder but rather as traits.  In my opinion, the history supports a diagnosis of a disorder.  There is also a suggestion there are narcissistic and antisocial personality contributors to this offending, this part of the formulation with which I do not agree.

25Relying on this report, Mr Allen submitted that the previously abandoned Verdins submissions were re-enlivened.  It will be remembered that Dr Curran, your treating psychologist in Exhibit 3, provided a similar conclusion to that expressed by Mr Newton.

26The learned prosecutor, Mr Murphy, submitted that the court should not engage the principles set out in Verdins – that is, principles 1 to 4 – and relied upon his written submissions, Exhibit C, between paragraphs 34 and 36, which need not be repeated in these reasons.  He referred to the decision of the Court of Appeal in Brown[2] where the issue of Verdins principles and personality disorders was analysed.  Mr Murphy submitted that the divergent opinions of the psychologist and psychiatrist do not support the submissions of Mr Allen and that the court should not find that you suffered from a relevant personality disorder at the time of your offending.

Brown v R [2020] VSCA 212[2]

27You will have observed that I have already found that limbs 5 and 6 are enlivened to some extent in respect of you, and I have taken that into account.  This argument was, of course, about whether limbs 1-4 applied.

28I have been greatly assisted by the judgment of the Court of Appeal in Brown. The Court of Appeal has made it clear that Verdins principles can apply to offenders with personality disorders.  What matters is not the diagnosis or label but rather the degree and effect of any impairment and the relationship of that impairment to the offending in question.  There needs to be evidence that allows the defence to establish on the balance of probabilities that there is a substantial link between any mental disorder and the subject offending.  The Court of Appeal endorsed the evidence of Professor Ogloff in that case that:

The bar needs to be set quite high.  The presence of a disorder, whether it is a clinical disorder or personality disorder, has to be one that has some profound effect on the individual's cognitive capacity and behaviour.

29The court said:

Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires.  What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender's impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.

30In Brown, the court was assisted by evidence given by two eminent forensic psychiatrists who gave evidence that the appellant, at the time of offending and at the time of sentence, was suffering from a severe personality disorder.  There was evidence that the appellant's impaired mental functioning had 'strong causal links to her offending'.  The court stressed that a sentencing court should rigorously scrutinise expert evidence to determine whether and to what extent the offender's mental functioning is or was relevantly impaired.  If there is such evidence, it may considerably reduce the offender's moral culpability and the application of both general and specific deterrence.

31In Brown, as I said, there was extensive evidence about the classification and nature of personality disorders, the nature of personality traits and the comparison of personality disorder to major mental illness.  No such evidence, of course, has been given in your case.  Your counsel relied solely on the report of Dr Maloney.  When asked what it meant so far as Verdins considerations are concerned, Mr Allen referred me to Dr Maloney's report.  I gave Mr Allen the opportunity to call Dr Maloney to give evidence, but he declined that invitation.

32Dr Maloney does not say that the existence of a disorder contributed to your offending but states that personality traits drove your offending.  As the Court of Appeal stated, labelling your condition as a disorder is not to the point.  A clear, well-founded expert opinion as to your impaired mental functioning is required, and in my view, I simply do not have that.  Accordingly, I accept the prosecution submission that limbs 1-4 of Verdins cannot be relied on in mitigation of your offending.  The evidence does not support the submissions make by your counsel, whether you do or do not have a diagnosed disorder.

33Your prospects of rehabilitation are reasonable given the support you enjoy, and one perhaps dependent upon your obtaining treatment to moderate your antisocial and self-centred personality traits.  It was properly conceded by your counsel that a term of imprisonment must be imposed in your case.  He submitted that you should be immediately released on a recognizance release order or alternatively released after a short period of imprisonment.  I cannot accept that submission.

34Your offending was a serious course of conduct involving repetitive fraudulent transactions in gross breach of trust.  You obtained substantial funds and offended as someone who had relatively recently been leniently treated for similar but less serious offending.  I give full weight to all the matters in mitigation to which I have referred.  However, principles of general and specific deterrence require a significant term of imprisonment to be imposed in your case.  Would you stand up, please.

35On the one rolled-up count of dishonestly obtaining a financial advantage from a Commonwealth entity, you are sentenced to be imprisoned for two years.  I order that you be released on a recognizance release order after serving 12 months of that sentence.  That sentence will commence today.

36Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty, a term of imprisonment of three and a half years with a non-parole period of two years and three months would have been imposed.

37Do I have to put a figure on the recognizance release order?

38MR MURPHY:  That is correct, Your Honour.  And in addition, Your Honour has to nominate a period of good behaviour following the offender's release.

39HIS HONOUR:  To be a period of good behaviour for 12 months, the remainder of the sentence.  And I make the recognizance order in the sum of $1,000.  Is that the usual sort of amount?

40MR MURPHY:  It is, indeed, Your Honour.

41HIS HONOUR:  All right.

42MR MURPHY:  Well, to be honest, Your Honour, there is no usual amount.  It is entirely a matter for Your Honour.

43HIS HONOUR:  Well, I have seen a lot like that, put it that way, all right.

44MR MURPHY:  As the court pleases.

45HIS HONOUR:  Who prepares that, you or I?

46MR MURPHY:  Your Honour, I have a draft form that I can input those details into and email to your chambers' email if that suits.

47HIS HONOUR:  Does she sign it now or in 12 months' time?

48MR MURPHY:  She signs it now, Your Honour.

49ASSOCIATE:  Now.

50HIS HONOUR:  All right.  So can we have it prepared.  Now, are there any other orders I have to make other than have that document ‑ ‑ ‑

51COUNSEL:  No, Your Honour.

52HIS HONOUR:  All right.  Have a seat until this gets done.  Downstairs are enquiring – what will happen is the child will be taken to Dame Phyllis Frost, will he?

53MR ALLEN:  Separately, yes, yes.

54HIS HONOUR:  Yes.  Sometime this afternoon?

55MR ALLEN:  Yes, yes, that is right, yes.

56HIS HONOUR:  Yes, all right.  They were waiting for it downstairs.

57ASSOCIATE:  I will let them know.

58HIS HONOUR:  All right.  We will let them know that it will be – what about this order?

59MR MURPHY:  Your Honour, I am just in the process of emailing it to your associate now.

60ASSOCIATE:  Yes, I have not got it yet.

61MR MURPHY:  Your Honour, I have just emailed that.

62HIS HONOUR:  Thank you.

63MR MURPHY:  So it should come through within the next minute or so.

64HIS HONOUR:  Perhaps even less.

65MR MURPHY:  With any luck, Your Honour.

66HIS HONOUR:  The mysteries of the Internet, all right.  If you could go down with Mr Allen and have him sign that.

67MR ALLEN:  It will have to be signed by my client.

68HIS HONOUR:  Yes.

69MR ALLEN:  May I approach the dock?  Yes.

70HIS HONOUR:  No, to take it up with my associate, is what I had in mind.  She has got to witness it, I think.  No other orders required, are there, Mr Murphy?

71MR MURPHY:  No, thank you, Your Honour.

72HIS HONOUR:  All right, all right.  Would you take Ms Ward into custody, and I will adjourn until ‑ ‑ ‑

73ASSOCIATE:  Well, now.

74HIS HONOUR:  Now.  Until the next matter comes on.

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