Director of Public Prosecutions v Alimic

[2022] VCC 819

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01743

DIRECTOR OF PUBLIC PROSECUTIONS

v

KLEMENTINA ALIMIC

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JUDGE:	Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF SENTENCE:	8 June 2022
CASE MAY BE CITED AS:	DPP v Alimic
MEDIUM NEUTRAL CITATION:	[2022] VCC 819

REASONS FOR SENTENCE
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Subject:Criminal Law          

Catchwords: Dishonestly obtain a financial advantage by deception from a Commonwealth entity – produce false or misleading documents – cooperation – self-reporting of criminal conduct – early plea of guilty –remorse – no criminal history – lengthy delay – rehabilitation – availability of section 19B bond – two stage process – definition of antecedents

Legislation Cited:      Crimes Act 1914 (Cth), s19B, s20(1)(a)

Cases Cited:Mansfield v Evans [2003] WASCA 193; Jones v Morley (1981) 29 SASR 57; Commissioner of Taxation v Baffsky [2011] NSWCCA 332; Warapa v Commonwealth Director of Public Prosecutions [2019] QDC 202.

Sentence: s19B bond to be of good behaviour for a period of 9 months, with security by recognisance in the amount of $500

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Erin Ramsay	Office of Public Prosecutions
For the Accused	Ms Veronica Drago and Mr Andrew Imrie	Adrian Paull Criminal Lawyers

HER HONOUR:

Introduction

1Klementina Alimic, you have pleaded guilty to five charges of producing false or misleading documents (charges 1, 3, 5, 7 and 9), two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity (charges 2, 4 and 6), and two charges of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity (charges 8 and 10). The maximum penalty for producing false or misleading documents is 12 months’ imprisonment, whilst the maximum penalty for both dishonestly obtaining and attempting to dishonestly obtain a financial advantage from a Commonwealth entity is 10 years’ imprisonment.

2These offences arise from a series of incidents which occurred between 3 and 12 January 2017 when you were 31 years of age. You are now 36 years of age, and come before this court with no prior convictions.

Circumstances of the Offending

3The full circumstances of your offending are set out in the Summary of Prosecution Opening for Plea which was tendered as Exhibit A. However, in much shorter compass between 3 January 2017 and 12 January 2017 you lodged five false Medicare claims for benefits to Medicare. On each occasion the false claims were supported by tax invoices which had been fabricated by you and contained false information as to anaesthetic services alleged to have been provided to you by Dr Danny Raiz with the corresponding surgeon being Dr Kevin Spencer. Subsequent enquiries by the Department of Human Services (DHS) confirmed that you did not receive any services from Dr Raiz or Dr Spencer.

4Charges 1 and 2 relate to the first incident of this offending which occurred on 3 January 2017. You lodged the claim for benefits with a false invoice which was dated 11 June 2016, totalled $5800, and showed that there was nil outstanding balance. Later that same day Medicare paid benefits totalling $4219.90 into your bank account via EFT as a result of your false claim.

5Charges 3 and 4 relate to the second incident of this offending which occurred on 5 January 2017. You lodged the claim for benefits with a false invoice which was dated 4 January 2017, totalled $5800, and showed that there was nil outstanding balance. Later that same day Medicare paid benefits totalling $4551.05 into your bank account via EFT as a result of your false claim.

6Charges 5 and 6 relate to the third incident of this offending which occurred on 9 January 2017. You lodged the claim for benefits with a false invoice which was dated 23 December 2017, totalled $5800, and showed that there was nil outstanding balance. Later that same day Medicare paid benefits totalling $4551.05 into your bank account via EFT as a result of your false claim.

7Charges 7 and 8 relate to the fourth incident of this offending which occurred on 11 January 2017. You lodged the claim for benefits with a false invoice which was dated 23 December 2017, totalled $5800, and showed that there was nil outstanding balance.

8Charges 9 and 10 relate to the fifth incident of this offending which occurred on 12 January 2017. You lodged the claim for benefits with a false invoice which totalled $5800, and showed that there was nil outstanding balance.

9These last two claims were intercepted prior to any money being paid into your bank account as a result of you contacting Medicare by phone on 12 January 2017 and alerting them to the fact that you had submitted fraudulent Medicare claims using falsified invoices. In that telephone call, you apologised to Medicare for your conduct, told Medicare that the money had been spent, and offered to repay the funds to Medicare by way of a repayment plan. As a result of your offending you dishonestly obtained $13,322 from Medicare and attempted to dishonestly obtain a further $9103. I note that this money has not been repaid.

10You were arrested and interviewed by police on 23 January 2017. You made full admissions in that interview in respect of each of the incidents and acknowledged that the invoice which you had used was the same invoice that your mother had used when she defrauded Medicare, save that you changed the name and date on it. You further told police that you were in debt, could not obtain a loan and had started using drugs to forget about what had happened. You also had a gambling issue. You used the money which you obtained to support your gambling and addiction to cocaine. You told police that your drug debt was around $10,000 and that you were using about a gram of cocaine per day, paying about $350 per gram.

11You were remanded in custody following your interview and remained in custody on these charges until you were granted bail on 11 May 2017. Accordingly, you have spent 109 days in custody in respect of these charges.

Plea of Guilty, Co-Operation with Authorities and Contrition

12Your plea of guilty in this case is a valuable plea.

13As I have already indicated, your offending occurred between 3 and 12 January 2017. You were the one who alerted the authorities to your own criminal conduct on 12 January 2017 and it was conceded by prosecuting counsel on the plea that your notification alerted Medicare to the entirety of your conduct – conduct which may have gone unnoticed in the absence of you taking that action. You also made full admissions to your conduct when you were interviewed by police shortly thereafter.

14You orally indicated a plea of guilty in this matter at an early opportunity. You did so in March 2018 at the contested committal hearing which related not only to these charges, but also to other charges for which you had been charged as a co-accused with your mother. You did not, at any stage, seek to cross-examine any witnesses in respect of these charges at the committal. Further, you confirmed your intention to plead guilty to these charges in writing on 2 November 2018. However the matter did not proceed to a formal plea hearing until the other charges (which were ultimately consolidated into one conspiracy to defraud charge) had been finalised at trial.

15Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the Court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. Further s16A(2)(f) and s16A(2)(h) respectively require me to take into account your degree of contrition for your offending, and your level of co-operation with law enforcement agencies investigating this offence.

16I consider your plea to have been entered at the earliest opportunity. It has significant utilitarian value in avoiding the cost and delay of trial. Further, I am satisfied that your plea, especially considered in light of your unsolicited reporting of your own criminal conduct and your extensive admissions in your record of interview, is both indicative of genuine remorse and a willingness to facilitate the course of justice.

17In the circumstances I have given you a substantial discount for your plea of guilty. I have also taken your cooperation with the authorities, and your contrition, into account in your favour.

Personal Circumstances, Prospects of Rehabilitation, and Relevance of Delay

18Turning now to your personal circumstances. You were born in Melbourne and were one of three children to your mother and father. Your father had immigrated from Croatia and your parents met in Geelong. You had a brother who sadly passed away in 1991 when you were 6 years of age, and then your little sister was born in 1997 when you were twelve years of age. You attended school in Australia until you were approximately 13 or 14 years of age. Your family then moved, when you were in Year 8, to live in Croatia.

19I am told that, as a young person, you excelled at tennis and were hoping to become a professional tennis player. However, your father was violent and abusive and when things became too intense, your mother ultimately fled back to Australia with your sister. You remained in Croatia with your father for a further eight months before also returning to Australia. By this stage you were approximately 19 years of age.

20On your return to Australia you found that your mother was in custody as she had committed a number of offences, and your sister was living with your maternal grandparents. You also commenced living with them and took on a role akin to being a mother to your little sister. Your mother was ultimately sentenced to a lengthy term of imprisonment for her offending, and was not released from custody until 2012.  This was particularly distressing for you, especially given the violence which you and your mother had endured from your father up to that time.

21Whilst your mother was in custody, and throughout the years leading up to 2015, you had consistent employment – often in multiple jobs at the one time. You worked in a rental phone company, a pizza shop, a Thai restaurant, a jewellers and also undertook casual work for four years with Loanmart – a mortgage broking business. Then in 2015 your mother, who had also been working at Loanmart, commenced her own mortgage referral business and you started working for her.

22I do not intend to rehash everything that passed in the period between September 2015 and March 2016 in respect of that business, save to say that the business was ultimately closed down in March 2016 after police arrested and charged both your mother and you with offences relating to the conduct of that business. Those matters ultimately proceeded to a judge alone trial before me, in which both you and your mother faced a charge of conspiracy to defraud, and after a 6 month trial, were acquitted.

23What is of particular relevance to this sentencing exercise though is that in the 15 or so months leading in to your current offending in January 2017 you had been through a period which had been difficult. Your relationship with your mother had been very disharmonious, you had become addicted to cocaine and developed a gambling habit; had been arrested and charged; your mother had been incarcerated again; and you had lost your source of income. None of this provides any excuse for your offending in January 2017, but it provides the context in which you made the very bad decision to try and obtain money through fraudulent Medicare claims.

24As I previously noted you were released on bail after spending some 109 days in custody on these offences. You immediately tried to get your life back on track. You worked in a Greek restaurant for 6 months and then obtained employment with Prism Groups. That employment was terminated when your boss found out about the dishonesty charges which you were facing. You then continued looking for work until you ultimately gained work in August 2019 with a company called Promotional Packaging. You were honest with your employer about the charges and the pending trial and your employer chose to keep you on. You continue to work in that role to this day.

25I have received a reference from your employer which speaks about you in glowing terms and confirms that you are a valued member of staff who has a positive attitude towards work and life, is always willing to help others, and has quite capably stepped into supervisory roles within the business when required to do so.

26Since being released from custody you have also remained offence-free, drug-free, and overcome your difficulties with gambling. You have had some mental health concerns due to personal issues and the stress of your legal proceedings but you have engaged in treatment for those issues with a psychologist, Krystyne Pniewski. Ms Pniewski provided a letter to the court identifying the reasons for treatment and your progress and I have had regard to the contents of that letter. Ms Pniewski was of the opinion that your condition is likely to improve further once these court proceedings have been finalised.

27Your counsel submitted that delay is a significant mitigating factor in this case both in terms of the extent of your rehabilitation in the past five and a half years since you were charged, and the burden of this matter hanging over your head for an inordinately long period of time. I agree with this submission. I am of the view that in the five and a half years since your offending you have undergone a lengthy period of rehabilitation and you present before the Court today as someone who has positively addressed and overcome the many issues which you were facing at the time of your offending. Further, I accept that you have suffered a considerable burden in having these matters hanging over your head for an extended period of time – especially with them being put on hold whilst the other alleged offending proceeded through a very lengthy, complex and stressful proceeding which culminated in your acquittal after the judge alone trial.  It is apparent from the letter from your psychologist that your mental health has suffered as a result of awaiting the outcome of these legal proceedings, something which has continued even in the aftermath of being acquitted in respect of the other allegations.  I have taken both of these consequences of delay into account in your favour in sentencing you.

Sentencing Submissions and the Availability of a s19B Bond

28Turning now to the sentencing submissions made by counsel, I note that the only matter in dispute on the plea was the appropriate sentencing disposition. Ms Drago, on your behalf submitted that in all of the circumstances a s19B bond (effectively a good behaviour bond without conviction) would be an appropriate disposition in this case. Ms Ramsay for the prosecution submitted that a s19B bond would not be open to the court given the seriousness of the offending, but conceded that it would be open, given the mitigating circumstances, for the Court to impose a bond pursuant to s20(1)(a) of the Crimes Act 1914 (Cth) (effectively a good behaviour bond with conviction).

29I agree with the submissions of counsel that a good behaviour bond is an appropriate disposition in this case. The real issue for me is whether it is open, in the circumstances, for me to impose a s19B bond, or whether a conviction must be imposed. Unlike the determination under section 8 of the Sentencing Act 1991 (Vic) in respect of conviction or non-conviction for state offences which directs the Court to have regard to

all the circumstances of the case including (a) the nature of the offence; and (b) the character and past history of the offender; and (c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects,

section 19B of the Crimes Act 1914 (Cth) confines the matters which a Judge can take into account in determining whether a s19B bond is available.

30As relevant, section 19B(1) provides that the court may impose a bond without conviction if

(b) the court is satisfied, …, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation.

31The application of the discretion in s19B consists of two stages. Firstly, the Court must identify one or more of the factors in s19B(1)(b) being operative; then secondly, having regard to the factor or factors so identified, the court must consider whether it is inexpedient to inflict any punishment other than a nominal punishment.

32Dealing firstly with section 19B(1)(b)(ii), whilst your offending occurred over a very short period and in circumstances where you reported your conduct to Medicare within days of the first offence and hours of the last offence, your offending cannot be considered to be trivial. Dishonestly obtaining a financial advantage from an entity such as Medicare in the manner in which you did is an inherently serious offence as reflected in the maximum penalty which parliament has imposed for such conduct. Further, you produced five separate false documents, and then used those documents in support of fraudulent claims to Medicare with the intention of Medicare paying you benefits. Rather than ceasing your conduct after the first occasion where you were successful, you undertook four more transactions. Moreover, the amount of money either dishonestly obtained, or sought to be dishonestly obtained, totalled over $20,000. This is a significant sum of money. Accordingly, I cannot be satisfied that s19B(1)(b)(ii) applies in this case.

33Turning to section 19B(1)(b)(iii), Ms Drago on your behalf submitted that your offences were committed in extenuating circumstances, being the lead up to the offending including your life history, the disastrous collapse of your mother’s business resulting in the arrest of both you and her, and your inability to access funds, which all lead to the increase in your drug use and drug debt. Ms Ramsay, by contrast submitted that the fact that the offending was committed to support a drug habit – even where that may have resulted from the issues with your mother and the allegations surrounding other offending – could not be considered to be extenuating. Further, Ms Ramsay submitted that your notification of your own criminal conduct to the authorities, whilst a significant mitigating factor, could not be relevant to this subsection as it is not a circumstance under which the offence was committed.

34I agree with Ms Ramsay’s submissions both in respect of the factors which I can and cannot take into account under this subsection, and her submission that the offences were not committed under extenuating circumstances. It has been held that extenuating circumstances are circumstances which ‘serve to make the offence seem less serious’, ‘lessen or seem to lessen the seeming magnitude of (guilt or offence) by partial excuses’ or which ‘excuse, in any appreciable degree, the commission of the offence charged.’[1] Further, whilst extenuating circumstances may be many or varied, there must be some link between the extenuating circumstances relied upon and the commission of the offence. This is because the provision does not allow the court to have regard to extenuating circumstances generally.[2] As I have earlier stated, whilst I accept that your offending was committed during a difficult period in your life where you were facing a number of issues, I do not accept that those circumstances excuse your offending conduct to any extent. Further, as submitted by Ms Ramsay, whilst a significant extenuating circumstance, your reporting of your own conduct to Medicare is not an extenuating circumstance under which the offence was committed. It is an action which you took in the aftermath of your offending. Accordingly, I cannot be satisfied that s19B(1)(b)(iii) applies in this case.

[1]    See, eg, Mansfield v Evans [2003] WASCA 193 at [20]; and cases cited therein.

[2] Ibid.

35That leaves section 19B(1)(b)(i). Ms Drago submitted that I could take into account the absence of any prior or subsequent convictions, the period of 109 days which you spent in custody, and your actions in reporting your own conduct to Medicare as being relevant to your antecedents and character. Ms Ramsay took no issue with the proposition that your character and antecedents would cover your lack of prior history, your work history and work ethic, and the self-reporting of your criminal behaviour.

36Antecedents has been defined broadly to include ‘all aspects, favourable and unfavourable, of an offender’s background, past life, personal, family, social, employment and vocation circumstances, and of [the offender’s] current way of life and its interaction with the lives and welfare of others’,[3] in addition to any prior history of criminal offending. Accordingly, in considering your antecedents I am able to take into account both your personal history and your solid work history. This broad definition of antecedents, would also in my opinion, allow me to take into account the steps which you have taken towards rehabilitation in the five years since committing these offences, and the impact which the delay in determination of a sentence for the offences has had upon your mental health.

[3]    See, eg, Jones v Morley (1981) 29 SASR 57, cited with approval in eg, Commissioner of Taxation v Baffsky [2001] NSWCCA 332, and Warapa v Commonwealth Director of Public Prosecutions [2019] QDC 202, [21].

37Further I accept that character relates not only to the presence or absence of prior or subsequent offending but may also relate to other factors which demonstrate your character – for example your strong work ethic and your acknowledgement of the wrongfulness of your own conduct both through your steps to report your criminal conduct and the remorse reflected in your plea of guilty.

38Neither concept would, however, stretch so far as to encompass the utilitarian benefits of your plea, nor the 109 days which you spent in custody on remand.

39However, having found that there are operative factors in respect of s19B(1)(b)(i), I must then turn to consider whether it is inexpedient to inflict any punishment other than a nominal punishment upon you. In determining whether it is expedient to impose a nominal punishment – being a s19B bond without conviction – requires consideration of a wide range of factors in addition to the mitigating factors relied upon at the first stage to enliven the discretion. An order under s19B(1) is an ‘order’ within the meaning of s16A(1) of the Act, therefore all matters under s16A of the Crimes Act which are relevant and known to the court must be considered in deciding whether to make an order under s19B.[4] This makes sense as this also allows for potentially aggravating factors, such as the nature and circumstances of the offence and any loss or damage caused by the offence, to be taken into account when determining whether it is inexpedient to inflict any punishment other than a nominal punishment.

[4] See, eg, Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [15]-[29].

40Ultimately, despite the serious nature of the offending which was committed in this case, and the need for me to give effect to general deterrence in any sentencing disposition imposed, I am satisfied that given the value of your plea of guilty, cooperation with authorities, contrition for your offending, consequences of delay both in terms of complete rehabilitation and anxiety of having the matter hanging over your head, your strong work history, the absence of  any prior or subsequent criminal history and the 109 days which you spent on remand in respect of these matters – which is a significantly punitive period far exceeding any penalty which might otherwise have been imposed in this case, it is inexpedient to inflict any punishment other than a nominal punishment upon you in this case.

41Accordingly, I am of the view that it is open in the circumstances of this case for a s19B bond to be imposed, and that such a sentence is of a severity appropriate in all the circumstances of the case. I note that such a disposition can be imposed across multiple offences, and it is my intention to do so in this case given the interconnectedness of the offences and the short period over which the offending occurred.

Sentence

42Ms Alimic could you please stand up.

43On the ten charges before the court, I propose to release you without proceeding to conviction, upon you giving security by recognisance in the sum of $500, that you will comply with a condition that you be of good behaviour for a period of 9 months commencing from today, being 8 June 2022.

44So what that means Ms Alimic is that you would be giving a promise to the court to be of good behaviour – that is to not commit any offences – for the next 9 months. I have set recognisance in the sum of $500. You do not become liable to pay that sum of money unless you breach the order. I must tell you that if you breach the order by failing to be of good behaviour then you may be brought back before me for contravening the order, and in those circumstances the bond may be revoked, you may be convicted of the offences, and you may also fall to be re-sentenced on these offences. Do you understand that?

45Further, I must also tell you that any recognisance you give in respect of this order may be discharged or varied. You have an ability to make an application for discharge or variance pursuant to the s20AA of the Crimes Act 1914 (Cth).

46Given what I have told you about the consequences of breaching the order which I propose to make, do you make that promise to be of good behaviour for a period of 9 months commencing today?

47MS ALIMIC: Yes.

Ancillary Orders

48There are no ancillary orders sought.

Other Matters

49Counsel are there any matters which any of you wish to raise at this time in respect of the sentence, or the reasons for sentence?

50COUNSEL: No

51Are there any other matters which counsel wish to raise?

52COUNSEL: No