Director of Public Prosecutions v Clifford

[2019] VCC 592

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02139

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURRAY CLIFFORD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	1 May 2019
CASE MAY BE CITED AS:	DPP v Clifford
MEDIUM NEUTRAL CITATION:	[2019] VCC 592

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mazoori	Commonwealth Director of Public Prosecutions
For the Accused	Mr R. Thyssen	Kurnai Legal

HIS HONOUR:

1Murray Allan Clifford, you have pleaded guilty to three charges of dishonestly obtaining a financial advantage, pursuant to sub-s.134.21 of the Criminal Code (Cth), and to one charge of attempting to do so. Those crimes carry maximum penalties of 10 years' imprisonment.

2You are now 45 years of age.  You pleaded at the earliest reasonable opportunity and must get the benefit of that plea of guilty.  I accept that you, at least now, have appropriate remorse for the offending that you undertook and you must also, of course, get the utilitarian benefit of that plea. Trials of this nature are complicated, time consuming and cause unnecessary expenditure; that is taken into account in this situation. 

3The situation here is that you do have prior convictions and relevant prior convictions.  The dishonesty priors, for which you received a suspended sentence must have been of significance but are now over a decade old.  But they clearly exist, you have clearly done this before, and it has to play a part.  I am satisfied that because of the length in time between that offending and subsequent offending that you have some prospects of rehabilitation, and if you apply yourself, you can indeed do so. 

4The offending is detailed in an annexure which was tendered during the course of the plea and I direct that that annexure remain on the court file and can be read in conjunction with these sentencing remarks so that I do not need to go into a lot of detail.

5In any event, the offending was that you, over a period of time, lodged multiple false Medicare claims for mental and dental services.  You supported those claims with false invoices and used your own Medicare account and that of others to make the fraudulent claims.  You were able to obtain payments from Medicare of rebates totalling $73,851.70. 

6The charges to which you have pleaded guilty are all rolled up, and I have discussed with the Crown an aggregate sentence is the appropriate way of going about this, obviously Charge 2 is the most serious of these and again, the transcript reveals how I have viewed that. 

7A number of fraudulent claims that you also lodged were not successful and that gives rise to the rolled-up charge of attempt, which would have amounted to something in the order of $13,000.  Clearly, this was an attack on the public revenue and an attack on the tax payer. 

8The offending extended over a significant period of time, although there would appear to have been gaps within it.  you continued to offend either after it must have become clear to you that the authorities were aware of your conduct and were endeavouring to interview you. 

9During the course of that period of time, which ranges from 2015 through to 2018, you lodged a total of 97 separate claims, for a total of 277 medical and dental services.  Some of these were done - or a lot of these were - sorry - were done by Medicare mobile and a number by you attending in person. 

10The electronic claims were used using your own Medicare details, those of your children, and a number of other registered medical care users.  I am not aware of how that all came about other than what is in the annexure but it is clearly a systematic and determined series of frauds. 

11At the time that you made these claims, you had set up accounts so that payments were generally directed into bank accounts that you held with various financial institutions, including the National Bank, Westpac, Bank of Melbourne, and the Commonwealth Bank.  In support of each claim you would lodge what are obviously forged invoices, purportedly issued by registered medical practitioners. 

12Those invoices, as I have said, were clearly forged and when you were actually apprehended by police, you had a large number of medical records of other people in your possession, you had a large substantial number of receipts and document in relation to different people, you had identification of bank cards to different people, and you had numerous electronic devices.  You were arrested and remanded on that day. 

13As I have already indicated, this is - 'sophisticated' might not be quite the right word, but this was a very calculated and a very determined series of frauds, albeit in a rolled-up form, over an extended period of time.  It must be regarded as serious, the amounts involved - I have seen far higher ones, of course, and normally in these situations, one is dealing with medical practitioners or dentists or people of that nature, but the sheer effort that was put in to this calls very much for the application of general deterrence.  In your situation, where you do have prior dishonesty convictions, specific deterrence, as well as denunciation, and obviously in these circumstances, and appropriate punishment are of significance. 

14The Crown have given me a number of cases that can be comparable; I do not think there is any argument about that.  And it seems to be common ground from the Bar table that the appropriate disposition here is a custodial sentence with a recognisance release order to come into play. 

15It was originally suggested by your counsel that a community corrections order might be an order that, but it just seems to me that the head sentence here has got to reflect the seriousness of the offending and there must be, obviously, an appropriate period of time to be served. 

16You have now been in custody for 289 days and this is the first time that you have been in custody.  You, yourself, have written a letter to me - and I get those a lot these days it seems, I treat them with an element of suspicion, but the fact of the matter is that you are at least professing that you are going to try an turn your life around.  You have very strong family support, many of whom - including your parents, your former partner and your children have been in court here today. You, upon your ultimate release, will be able to go and live with a sister.  You do have a relatively good work record. 

17In terms of your personal history, very succinct and helpful submissions were filed by your counsel.  You were apparently born in the western district and raised in Maffra.  You completed Year 12 at Maffra Secondary School and then you did an accounting course at the RMIT.  You are clearly not an unintelligent person.  You were married for many years, having now been separated for some five years.  You have worked in a tiling apprenticeship and you also worked in hospitality. 

18You have three children, their ages ranging from 16 down to a child - sorry, down to, as I understand it, about 13.  They reside with your former wife in Traralgon and she has two children from a subsequent relationship.  I read a letter in regard to all this and taken into account. 

19At least one of your children has serious difficulties and I take into account again that you will be undergoing the further period of this imprisonment and have already gone imprisonment, being aware of his isolation from you.  That is not an exceptional circumstance, it just adds weight to the time that you have spent in custody. 

20There is a report from Ms Carla Lechner, which says you suffer from depression, which I accept, also symptoms of post-traumatic stress disorder from a, at one stage, partner dying of a prescription drug overdose, and you also self-reportedly, but I accept, having witnessed a fairly dramatic suicide by a person jumping in front of a car of which you were a passenger.  It is hard to see, really, what that has got to do with this offending. 

21But the fact of the matter is that you have reported at least to various people that gambling has been a problem and you have now taken steps at least to gain self-exclusion.  Drugs are put forward as a reason for all this as was indicated during the course of the plea.  The sheer determination and complexity of the way you went about of this, to me, smacks of the gambler rather than the drug addict. 

22Be that as it may, both those matters have to be looked at and it is going to be a matter for you.  You will be on a recognisance release for a significant period of time.  You must understand, having had a suspended sentence previously and are now receiving a significant sentence for this, that any repeat of this offending would call for a significant custodial sentence indeed.

23Since you have been in gaol, to your credit, you have done various courses, you have done a welding course and also an information technology course.  As I understand it, you sought psychological counselling and you intend to continue you that after your release. 

24The prospects of your rehabilitation must be somewhat problematic, bearing in mind your history, and the risk of you reoffending, I think, is going to be totally dependent upon you being able to control any gambling habit that you have, and that can only be achieved with the support of your family. 

25I take into account that, in this situation, you must understand that the support that has been given to you. If you make a mess of all this and start offending again in this way, you will be in gaol for a lot longer than I am going to put you in; your family suffer and that will be nobody's fault but yours.  I am aware of the provisions in the Commonwealth legislation that I take into account in sentencing and I do take  all those matters into account.

26Because of the overall circumstances here and because of the amount involved, obviously a significant sentence has to be undertaken in terms of time actually served.  I have tried to balance the fact here that I have seen much larger frauds take place, as I said, I think against the determination that was involved in this. 

27Accordingly, taking all those matters into account as best I can, on the four charges, you are sentenced to be imprisoned for a period of two years and six months, that is on an aggregate basis.  I direct that that sentence commence today. 

28I direct that you be released, if you agree, having served a period of 12 months' imprisonment on a recognisance, which will be for three years, which will have a - yes, a recognisance of $1000.  The only condition being that you be of good behaviour.  I direct that 289 days be reckoned as having been served under this sentence. 

29Pursuant to s.6AAA, I say that - assuming that I am obliged to give such a direction - that you would have been sentenced to be imprisoned for a period of three and a half years with a minimum term of two years and three months, but for your plea of guilty.  All right, so we will need to enter that recognisance.  All right, you understand the recognisance that you are being asked to enter into?

30OFFENDER:  I am pretty sure I do, Your Honour.

31HIS HONOUR:  Yes, well it is to be of good behaviour; make a mess of that and you will be in serious bother, all right?  I will let Mr Thyssen explain it to you in more detail.  I am simply alerting you to the fact that if you offend, particularly in this sort of way that between now and the three years from your release, you will be in serious trouble indeed.  All right, so if you would not mind, just accompany my associate, Mr Thyssen?

32MR THYSSEN:  Yes.

33HIS HONOUR:  All right, if that is done, there is no other order I need to make?

34MS MAZOORI:  No, Your Honour made the reparation order?

35HIS HONOUR:  Yes.

36MS MAZOORI:  Yes.

37HIS HONOUR:  Yes, I should formally (indistinct words) and hand it down.  And I have also taken that into account, for what it is worth in terms of sentencing, I have just not mentioned it. 

38MR THYSSEN:  Yes, Your Honour.

39MS MAZOOR:  As Your Honour pleases.

40HIS HONOUR:  All right, nothing else I need to do?  No? 

41MR THYSSEN:  No.

42HIS HONOUR:  All right, you can take him now, thank you.  I thank counsel for that, for the directness and the brevity of it.  It is sometimes not the case.

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