Director of Public Prosecutions v Golic

[2014] VCC 1585

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01396
CR 14-01398

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREA CLAIRE GOLIC

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2014
DATE OF SENTENCE:	19 September 2014
CASE MAY BE CITED AS:	DPP v Golic
MEDIUM NEUTRAL CITATION:	[2014] VCC 1585

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

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr M. Ryan	C.D.P.P.
For the Offender	Mr M. Amed	Amad & Amad Solicitors

HIS HONOUR:

1Andrea Claire Golic, you have pleaded guilty to the following offences:

2(i) Obtaining a financial advantage by deception from the Commonwealth contrary to s.134.2(1) of the Criminal Code (Commonwealth).  The maximum penalty for that offence is ten years' imprisonment;

3(ii); Attempting to obtain financial advantage by deception from the Commonwealth contrary to s.11.1(1) of the Criminal Code (Commonwealth).  The maximum penalty for that offence is ten years' imprisonment;

4(iii) Obtaining a financial advantage by deception contrary to s.82(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

5You pleaded guilty at committal mention on 6 August 2014 and I have taken your early plea into account in your favour in mitigation of sentence.  I accept that your plea is evidence of remorse for your offending and that it has spared the community and witnesses the expense and inconvenience of a criminal trial of these offences.

6You have no prior convictions or subsequent convictions and there are no outstanding charges in your case.  You are a first offender. 

7A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows -

8Between March 2012 and November 2012 you lodged 34 false patient invoices with Medicare to obtain rebates in the sum of $199,875.35.  The false invoices were for neurosurgery which had been performed on you by Doctors Charles Teo and Jacob Fairhall in Sydney on 24 January 2011.  The false invoices were for the same surgical procedure and carried the same medical item number.

9You also attempted to obtain a further $16,699.80 between December 2012 and May 2013 by the use of two further false invoices for the same surgical procedure.  You also obtained $42,723.55 from Bupa Australia P/L, your health insurer, by lodging 17 false invoices for the same surgical procedure performed by the same doctors.

10Your offending was investigated by officers from the Commonwealth Department of Human Services and Victoria Police and you were interviewed by those officers on 12 September 2013.  You made full admissions to the investigators and also provided documentary evidence to them.  You were charged with the offences before the court in January 2014 in relation to the Victorian offence, and in March 2014 in relation to the Commonwealth offences.

11Your offending involved a systematic course of conduct to defraud Medicare and Bupa P/L.  A substantial sum of money was obtained by you and it is clear that your offending may be properly described as serious in nature.  The entitlements by patients to recovery of funds expended on medical treatment is based on complete honesty, transparency and integrity by the claimant.

12The sentence that I impose must be calculated to protect the public and private health insurance sector from frauds of this nature, and so that sentence must be calculated to deter you and others from offending in this way. 

13In my opinion it would be an exceptional case in the circumstances of offending of this type, and the sum of money involved, that did not attract the imposition of a term of imprisonment to be actually served by the offender.

14I now turn to your personal circumstances.  You were born on 14 February 1983 and you are now aged 31.  You have no siblings.  Your family life has been stable and supportive, although your mother, a retired school teacher, suffers from depression for which she receives treatment and medication.

15You were educated at Lowther Hall, and Melbourne Girls Grammar School.  You completed your VCE in 2001, obtaining an enter score of 80.  However in Year 11 you suffered the onset of a depressive illness characterised by anxiety and obsessive compulsive behaviour.  You were prescribed antidepressant medication by your treating psychiatrist and you have remained on that medication since that time.

16After leaving school you commenced tertiary studies at RMIT.  You did not complete your studies but you have recently returned to them.  After leaving university you began working for an accounting firm and you were introduced to gambling by other staff members.  You quickly became obsessed with this activity, no doubt in response to your underlying mental illness.

17In 2006 you began to suffer from severe and debilitating headaches and migraines.  You were diagnosed with a brain tumour affecting your pineal gland and you were informed by Professor Andrew Kaye, a neurosurgeon, that the tumour was inoperable.  He also informed you that your life expectancy was uncertain.  For approximately four years you suffered the effects of your illness and your gambling escalated.  However in 2010 you consulted Dr Charles Teo in Sydney, and following discussions with him, decided to undergo neurosurgery for your brain tumour despite the high risks involved.

18On 24 January 2011 successful neurosurgery was completed by Dr Teo and you made a complete recovery.  However up to this time your life had been severely disrupted, and following your operation you continued gambling.  It is in this context that your offending occurred.

19I have received in evidence a body of psychiatric reports detailing your history of depression and the development of a pathological gambling addiction.  It is clear that your gambling addiction is closely linked to your depressive illness, that was in turn compounded by you suffering from a brain tumour and its effect for over four years.

20 I also accept that following your brain surgery your depressive illness intensified and you were unable to comprehend what you had experienced and what your future entailed.  It was submitted on your behalf that the principles set out by the Court of Appeal in R vVerdins (2007) 16 VR 269 are engaged in your case, and this submission was accepted by the prosecution. It is clear that the principles are so engaged and I am satisfied that your moral culpability is substantially moderated by your mental illness. The application of the principal of general deterrence must also be moderated in your case, and I accept that imprisonment would compound your illness, and by reason of it, imprisonment would involve a significant degree of hardship for you than would otherwise be the case.

21Your counsel also referred me to the decision of the Victorian Court of Appeal in DPP (Cth) v Parfrey [2010] VSCA 212, generally, and also in relation to the observation by Justice of Appeal Hansen that in an appropriate case a judge may exercise the judicial discretion of mercy.

22Following being charged with these offences you commenced attending Gamblers Anonymous and you continued to see your treating psychiatrist on a regular basis for your mental illness.  You have resumed your tertiary education and hope to obtain appropriate employment in the future.  I am satisfied that your prospects for rehabilitation are good, but you nevertheless require ongoing supervision, support and treatment for your mental illness and your gambling addiction.

23In the event that you are able to resume appropriate employment you will also be in a position to make reparation, pursuant to the orders that I will make in this case, to Medicare and Bupa P/L.

24In my opinion yours is an exceptional case for the reasons that I have set out, and whilst I consider that imprisonment is the appropriate proportionate penalty for Charge 1 and Charge 2 on the Indictment, I have decided that you should not be required to serve that term of imprisonment.

25Furthermore, you have been assessed as suitable for placement on a Community Corrections Order, and in my opinion this disposition will support your rehabilitation, and further, the purposes to which this sentence is to be imposed will be achieved by you being placed on such an order.

26In the result the sentence of the court is as follows –

27In relation to Charge 1 on the indictment; the charge of dishonestly obtaining a financial advantage by deception from the Commonwealth, you are convicted and sentenced to be imprisoned for two years.  I order that this sentence commence this day, that is 19 September 2014.

28In relation to Charge 2 on the Indictment; attempting to obtain a financial advantage by deception from the Commonwealth, you are convicted and sentenced to be imprisoned for four months, and I direct that this sentence commence this day, 19 September 2014.

29I further direct that you be released on a recognisance forthwith for a period of two years in the sum of $500 in relation to those two charges.

30In relation to Charge 3 on the indictment you are convicted and sentenced

to a Community Corrections Order on the usual core conditions for a period of two years and on the following special conditions: 

31I order that you perform 80 hours unpaid community work during the course of the order.

32I order that you be the subject of supervision during the order.

33I further order that you undertake mental health assessment and treatment as directed during the course of the order.

34I further order that you undertake courses in relation to your gambling addiction as directed.

35In relation to the charges for which imprisonment has been imposed, but for your plea of guilty I would have sentenced you to a term of imprisonment of three years and imposed a non-parole period of 12 months.

36Mr Ryan, you sought two compensation orders, is that right?

37MR RYAN:  Yes.  I sought one compensation order.

38HIS HONOUR:  Yes, and one reparation order.

39MR RYAN:  Correct, sir.

40HIS HONOUR:  Do you have a draft order?

41MR RYAN:  I have a draft order for the compensation order.

42HIS HONOUR:  Yes.

43MR RYAN:  There is no document of an equivalent basis for the Commonwealth charge, the Commonwealth charge reparation can merely be made orally.

44

HIS HONOUR:  I see, thank you.  Have you got a Sentencing Act there,

Mr Ryan?

45MR RYAN: I only have s.86, sir.

46

HIS HONOUR:  Yes.  Could I have a look at that, please.  Thank you. 

Mr Amed, in relation to the compensation order to be made in favour of Bupa Australia Pty Ltd, do you have any submissions that you wish to make?

47MR AMED:  No, I do not, Your Honour.  Her ability to pay at the moment is non-existent, but that may become (indistinct) later on.

48HIS HONOUR:  Do you oppose the making of the order?

49MR AMED:  No, Your Honour.

50HIS HONOUR: Thank you. Yes. I make a compensation order pursuant to s.86 of the Sentencing Act in the sum of $42,723.55 in favour of Bupa Australia Pty Ltd.

51(Compensation order signed and acknowledged.)

52The reparation order, what section is that made under?

53MR RYAN:  Section 21B of the ‑ ‑ ‑

54HIS HONOUR:  Do you have a copy of that section?

55MR RYAN:  I have the Act, sir.

56HIS HONOUR:  Thank you.  Mr Amed, do you wish to make any submissions in relation to the application for reparation in the sum of $199,875.35?

57MR AMED:  Your Honour, insofar as mental illness is a factor to be determined, whether it is or is not, I make a submission that a relevant sentencing principle that Your Honour has applied in this case has been that the accused has suffered from a significant illness for some time and was contributing factor to the offending.

58HIS HONOUR:  Yes.

59MR AMED:  In those circumstances, Your Honour, and upon reflection in relation to the Bupa ‑ ‑ ‑

60HIS HONOUR:  I have already made that order.  I have signed it.  What are you submitting, that because of her mental illness I should not make the order?

61MR AMED:  Yes, Your Honour.  I apologise, Your Honour, it is just something that - normally one would not oppose these sorts of orders.

62HIS HONOUR:  Yes.

63MR AMED:  But in the particular circumstances of this case, having heard and having digested Your Honour's reasons for judgment - for sentence, it is a matter that I feel the need, that I should make the submission that because of her mental illness that both orders should be opposed.

64

HIS HONOUR:  I have already made the first order and you made no submission in relation to it, but that is not determinative of the issue. 

Mr Amed, it is a fairly substantial sum of money involved.

65MR AMED:  It is.

66HIS HONOUR:  I do not propose to make any orders if they are opposed at this time until I have heard proper submissions which you are plainly not in a position to make.

67MR AMED:  No.

68HIS HONOUR:  What I propose to do is, I will vacate the order that I have made in favour of Bupa Australia Pty Ltd.

69MR AMED:  Thank you, Your Honour, I apologise for that.

70HIS HONOUR:  That order will be vacated and the two applications are on foot.  They have been made at the time of sentence and it would appear as if I have the power to make the order.  I still have power after the sentence has been passed, plainly enough.  What I propose to do is direct that written submissions be provided on behalf of Ms Golic on or before 26 September 2014, so I will give you a week ‑ ‑ ‑

71MR AMED:  Thank you, Your Honour.

72HIS HONOUR:  On or before the close of business as to why the two orders should not be made.

73MR AMED:  If Your Honour pleases.

74HIS HONOUR:  I will then inform the parties what my - if I need to, I will probably list it for mention in Melbourne and announce the order.  In the meantime the sentence can be passed into the record of the court.  Do you have the recognisance there?

75MR RYAN:  I do, sir.

76HIS HONOUR:  Thank you.

77MR RYAN:  Is Your Honour minded to allow the Crown to respond to submissions?

78HIS HONOUR:  I suppose, yes, you need to.  I will direct that the Commonwealth respond to the submissions on behalf of Ms Golic on or before the close of business on 3 October 2014.

79MR RYAN:  As Your Honour please.

80HIS HONOUR:  Have we got the CCO?

81MR RYAN:  Yes, Your Honour.

82HIS HONOUR:  Thank you.  You can just step forward thanks, Ms Golic.  You consent to these orders that I have made, particularly in relation to the community corrections order, is that correct?

83OFFENDER:  Yes, sir.

84HIS HONOUR:  Yes, thank you.  Could you just sign that please and then I will sign it after you have.

85(Community corrections order signed and acknowledged.)

86Yes, I have made that order.  You have go the recognisance there, have you, Mr Ryan?

87MR RYAN:  Yes, Your Honour.

88HIS HONOUR:  The order that I made regarding Bupa, I have signed it but it had not passed into the record of the court, so there is no difficulty with that being vacated.

89(Reparation order signed and acknowledged.)

90I do not think Ms Golic has to sign it, does she?

91MR RYAN:  Yes, sir, she does.

92HIS HONOUR:  She does?  I will sign it first.

93MR RYAN:  Thank you.

94HIS HONOUR:  Thank you.  Yes.  Could you also sign this recognisance please, Ms Golic.  You are required to be of good behaviour during the period of the recognisance of course.

95(Recognisance order signed and acknowledged.)

96Are there any further orders required?

97MR RYAN:  No, sir.

98HIS HONOUR:  Ms Golic, you are required to attend at the Corrections Victoria office I think in Bendigo, is that correct.

99OFFENDER:  That is correct.

100HIS HONOUR:  I will then provide you with directions in relation to your community corrections order.  As I have explained to you, you are required to be of good behaviour during the period of the recognisance release order that I have made in relation to the term of imprisonment.  I will consider the application for reparation and compensation following receipt of the written submissions that have been made.

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