Director of Public Prosecutions v Ibrahim

[2024] VCC 1442

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00794

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULKADIR IBRAHIM

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Ibrahim
MEDIUM NEUTRAL CITATION:	[2024] VCC 1442

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Obtaining a financial advantage from a Commonwealth entity; 3288 false Medicare claims lodged for a period of 1 year and 8 months; total payments received

$ 464,658.80.

Legislation Cited: s134.21 Criminal Code (Cth); s20(1)(b) Crimes Act 1914 (Cth)

Cases Cited: Kovacevic [2000] ACR 131; R v Cameron & Anor [1993] 171 LSJS 305; R v Schwabagger [1997] 38 ATR 30; R v Milne [2001] VSCA 93; R v White (unreported) New South Wales Court of Criminal Appeal, 20 August 1998; Mohamed v The Queen [2022] VSCA 136; R v Lovel [2007] QCA 281; Hassan v The Queen [2010] VSCA 352; DPP v Dalgleish [2017] ALJR 1063;

Sentence: Three years imprisonment with a recognisance release order after serving twelve months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Farhall	Office of Public Prosecutions
For the Accused	Ms J. Willard	James Dowsley & Associates

HIS HONOUR:

1Mr Ibrahim was born in March 1987, and he is now 37.  The offending that makes up the crime that is before the Court occurred from the age of
29 through to 31.  This plea took place before the Court on 4 September 2024, when Mr Farhall appeared on behalf of the Director, and Ms Willard appeared on behalf of Mr Ibrahim, both of whom appear here today.

2The indictment is one signed by Mr Doyle dated 8 December 2023 and the plea was a plea of guilty to the charge in that indictment, a charge under the Criminal Code, s134.2(1), being obtaining a financial advantage from a Commonwealth entity. The number of claims involved was 3288, obtained by way of the lodging of false bulk bill Medicare patient claims, allegedly on behalf of a doctor.

3Payments of those claims were received, to which Mr Ibrahim was not entitled, into a corporate bank account of a company, to which bank account he had access.  Such payments were made from 25 November 2016 to 29 August 2018, being a period of one year and eight months.  The payments were made by Medicare in the name of Dr Halima Satiri, and those payments totalled $464,658.80.

4Mr Ibrahim was charged in regard to this matter on 11 November 2022.  The offer to plead guilty to this charge was accepted in December of 2023.  He was arraigned on 14 December 2023 and subsequent to that time he repaid the sum in full which had been falsely obtained from the Commonwealth, and in particular Medicare.

5It is important to understand in this sentence how the crime was committed.  Mr Ibrahim has a degree in business from Middlesex University, and worked in England for several years, in particular in retail and insurance, for example, at the Barkly Bank.  He migrated to Australia in 2015, some eight years ago.

6Based upon experience in the United Kingdom he conceived of an idea of a 'homebased' GP practice in 2016. In June of 2016 he incorporated a company called GP At Home Pty Ltd, intending to conduct what is known in the field as a deputising service.

7In seeking to obtain a doctor to perform the professional part of this service, Mr Ibrahim contacted and ultimately interviewed Dr Satari.  There were a number of interviews which took place in July through to September, and in such process, on 7 September 2016, Dr Satari supplied a partly completed application form which was signed by her to establish what is known as a location provider number, which allows a registered GP to have a particular provider number relevant to the location of where she intended to practice.

8Dr Satari indicated, sometime around September or October, to Mr Ibrahim, that she did not wish to be part of the business. I think, as I have already said, my experience certainly of GPs in Melbourne is that they are particularly averse to carrying out their profession in circumstances which involve home visits.  It seems that that difference is at the core of the problems that
Mr Ibrahim got himself into.

9Thereafter Mr Ibrahim falsely completed the application form and forwarded the application for approval.  Services Australia provided to Mr Ibrahim, or to the company, of which Mr Ibrahim had effective control, approval for Dr Satari to operate at such location, from 28 September 2016.

10Thereafter Mr Ibrahim submitted, over the next one year and eight months, the 3288 applications for the Medicare refund payment to a GP, being Dr Satari at the relevant registered provider location for medical services allegedly performed. It should be noted that in the claim forms that were forwarded, Mr Ibrahim had in fact not only nominated false claims as to patient names but provided actual birthdates and false addresses.

11The above circumstances were unknown to Dr Satari. Nor did she know that the 3288 applications were processed, or that the payments for the purported bulk bill claims had been paid into the clinic bank account, which was set up by Mr Ibrahim at the Bank of Melbourne.

12It is to be noted that this particular bank account was set up in the name of his wife as Mr Ibrahim was not a citizen of this country at that time.  The bank account, albeit that the person to operate the bank account was his wife, as the director of the company, Mr Ibrahim had access to that account.  As I have said, the sum received into that account was $464,658.80.  Schedule A to the opening provided by the prosecution details such claims made and the payments made by Medicare.

13In the plea, although the circumstances and facts as set out in Exhibit A were accepted by Ms Willard, I was not advised by the defence of any reason for the crime being effected.  The only answer that I have been able to comprehend, is obtained from a reading of Dr Barth's psychological assessment of Mr Ibrahim of February and April 2024, which is dated 2 April 2024 as Exhibit 2. At [39(4)] Dr Barth opines that the reasons he identifies for this crime were the low self-esteem of Mr Ibrahim, with a corresponding desire for approval from others as to his business endeavours.  Then at [39(5)] he says this:

'His crime was motivated in part to maintain the "illusion of success", when in fact his financial problems were spiralling out of control.'

14I was further not advised what happened to the monies.  It was suggested it went on family living expenses, which I said in the circumstances I did not accept, especially as his wife was an administrator, according to her note working full time in what she describes as a demanding role, requiring her full focus and attention. Nor was it explained by the defence why Mr Ibrahim voluntarily ceased seeking such payments from Medicare in August 2008, prior to any investigation, which I am told began in February 2021.

15I was further not told by the prosecution how the crime came to be detected.  However, as I have said today from reading the statement of Dr Satari, it appears that she reported an instance where a client had approached her as to a claim made in her name, and it was as a result of that that she contacted the Department.

16Objectively therefore trying to fully understand how this crime was effected, as best I can determine, the purpose was to finance the business of GP At Home Pty Ltd, or to finance the subsequent further unsuccessful business of First Medical Group from February of 2017 to May of 2017, when it operated, and thirdly, to supplement family income.

17I accept the submission of the prosecution that the crime objectively warrants imprisonment with actual time to be served, see Exhibit B, [5].  I Find the objective assessment of the defence set out at [9], Exhibit 1, should be rejected.  I would classify the objective criminality of Mr Ibrahim's crime as high.  I do not see any relevance in the fact that he did not hold a position of trust, as we understand such in the law.

This case must be assessed as detailed by the Court of Appeal of South Australia in Kovacevic [2000] ACR 131, when they analysed an earlier decision of the then Chief Justice King of the South Australian Court of Appeal in R v Cameron & Anor [1993] 171 LSJS 305, 306 to 307. The majority said of the earlier decision of Chief Justice King the following:

'In our opinion the proper approach to sentencing is better reflected by saying in cases of this type, being revenue cases (in that case sustained and deliberate fraud) … an order of imprisonment, with some of the imprisonment actually to be served, is ordinarily likely to be required.'

18In this regard I note the decision of the Court of Appeal in 1997, R v Schwabagger 38 ATR 30, which was a taxation evasion case. At [34] Justice Kenny agreed with the view expressed in Kovacevic when she said as follows:

'In the case of revenue offences, as is the case with other serious offences, the sentence to be imposed will depend on the particular circumstances of the case … accordingly it would be wrong to hold that … as a matter of principle, persons who are convicted of a (revenue offence) must necessarily serve a term of actual imprisonment.'

19One of course cannot lose sight of the importance of general deterrence in regard to these offences, as detailed by President Winneke in R v Milne [2001] VSCA 93, at [12 and 13]. In this regard I note the specific reference to a Medicare fraud case contained in R v White (unreported) New South Wales Court of Criminal Appeal, dated 20 August 1998, 14.

20I also refer to the words of Appeal Justice Tadgell in Tu Van Tran [1996] ACR 53, at [57], as to the 'disincentive' role of sentences in this type of case insofar as sending a message to the community is required.

21I come then to the plea of Ms Willard.  Ms Willard tendered Exhibit 1 and spoke to such submission.  I have already dealt with her submission as to objective criminality.  She submitted at [23] that an imprisonment sentence with immediate release would be sufficient in the totality of the circumstances of this case.

22Ms Willard further submitted as follows.  Firstly, Mr Ibrahim has no criminal history and is now of the age of 37.  As I have said Mr Ibrahim was charged in November 2022 and was committed for trial in May of 2023, entering a plea of not guilty. 

23The second matter put by way of mitigation was the plea of guilty. This plea was finally accepted by the Crown in December 2023 after apparently an offer was made as to such in October 2023. As I have said, the arraignment then took place on 14 December, when Exhibit A indicated that a repatriation order was to be sought, see [19]. I have not been advised as to any discussions that took place leading up to such solution or to the matter being solved and coming before the Court as a plea. However, as I have said, the plea was entered on 14 December 2023. Such plea is utilitarian and assists the cause of justice. While clearly not an early plea, it is certainly a plea made before a trial date had been set.

24The prosecution accepted that Mr Ibrahim had voluntarily attended for interview on 2 March 2021 with representatives of Medicare.  In such interview he was cooperative and made voluntary admissions, having had the ability now to have seen that statement, that is clearly true.  I accept the plea as facilitating the course of justice and being utilitarian and a matter of mitigation, and together with his co-operation, indicating remorse.

25I come then to the question of delay.  The offending here ceased in August 2018.  An investigation began in February 2019, as I have indicated, I was not advised as to why it took until March of 2021 for Mr Ibrahim to take part in a record of interview, and/or why the charges were not laid until November 2022.  I now at least, as I have said earlier, understand that the investigation more than likely started as a result of contact made by Dr Satari.

26In this regard I understand in regard to Medicare, that the Court is dealing with and has to comprehend the operations of a mega large organisation where detection of individual frauds is hard, and such investigations are long and costly.  However, as to the specifics of the delay in this case, I, as I have said, have absolutely no information.

27In looking at the date that the plea was made, given the date of the not guilty plea initially, and the fact apparently that Ms Ibrahim was originally to be charged, which led to the issue of a warrant, and as the prosecutor said also the impact of Covid, the delay does not seem to be unreasonable, given those matters, in that the plea offer was finally accepted in December 2023.

28However, none of those matters can be put at Mr Ibrahim's door, and clearly such delay must be taken into account in mitigation, but it is of course not of the nature of the unreasonable delay as, for example, set out in the case that I have already referred to of Schwabagger.

29I come then to the question of the personal circumstances in regard to
Mr Ibrahim.  Those matters are detailed in the written plea from [26] to [38], being Exhibit 1.  Mr Ibrahim currently works with Launch Housing, who are unaware of his offending.  Mr Ibrahim is a father of three children, all apparently born since this offending, and aged respectively six years, five years and 20 months.

30In Exhibit 3, which is a letter from Mr Ibrahim's wife, she expresses concern as to the gaoling of her husband and its impact, on her own mental health and the emotional development of her children.  I have no further evidence in this regard, apart from her statement.

31Being a Commonwealth case s16A(P) applies, and unlike Victorian law issues as to impact on families do not have to be determined on an exceptional basis, as decided in Mohamed v The Queen [2022] VSCA 136, at [41] to [43]. I accept that imprisonment in regard to Mr Ibrahim would be a cause of hardship, not only to Mr Ibrahim, as to his concern for his family and wife, but in particular for the wife and family, and such is therefore a matter of mitigation for me to take into account.

32I then come to the issue of reparation.  While I do not ascribe any fault as to the submission in this regard, in particular [11], the fact is that upon my questioning as to how Mr Ibrahim was able to make reparation, I was advised that he in fact did not personally make reparation for the whole amount, albeit the whole amount was paid.  Such reparation was made by obtaining the help of his family whereby a property, owned by his now deceased father in Somalia, was sold.

33Mr Ibrahim is apparently entitled to one fifth of the value of that property, and as such has received loans of four fifths of the sum which he has repaid and has undertaken to repay that four fifths to his siblings.

34As detailed in R v Lovel [2007] QCA 281 at p8, the fact of reparation is a significant consideration, and of course relevant pursuant to the provisions of the Act, s16A(2)(F)(1). As I have mentioned, given the time in this case, such reparation was paid after Mr Ibrahim would have been aware of the application for reparation, see Exhibit A (19), and six years after the cessation of offending, and subsequent to his plea of guilty on arraignment in December 2023.

35It also must be remarked that it represents great generosity by his family.  Despite as he advised Mr Barth at [15] of Exhibit 2, the family being, 'Very disappointed with me', such action by his siblings is all the more remarkable when one is considering a family who fled to the United Kingdom as refugees in 1990.

36As to this particular factor, I also take into account the need for consideration of the weight of such factor, as is detailed in Lovel at [9] and referred to in the prosecution's submission, Exhibit B, at [17].

37Coming then to rehabilitation, Ms Willard at [46], submits that his prospects in this regard are excellent as detailed therein.  This of course is a specific factor which I am required to consider under s16A(N).  Mr Barth at [40] of Exhibit 2 considers that with appropriate interventions, see [41], there is room for optimism as to Mr Ibrahim's rehabilitation by way of him gaining insight into his offending conduct, and being able to bring into play effective future management of his issues of self-doubt.

38Given his intelligence, education, family obligations, current experience of the law, indeed having to repay his family the four fifths of the reparation made, and having to deal with the sentence I am about to announce, I accept that the prospects of rehabilitation are indeed high.

39Comparable cases, I have considered the cases put to me by both counsel and in such regard I refer to Hassan v The Queen [2010] VSCA 352, at [44], which says as follows:

'The first task of the sentencing judge when seeking to ascertain an appropriate sentence in a particular case is to assess the objective gravity of the particular offence.  The maximum sentence prescribed by Parliament will give a definitive answer to the question where the most serious example of the offence in question lies in the catalogue of criminal behaviours.  An examination of comparable cases will then assist the judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced, but the limitations of the exercise must be borne in mind.'

40Then at [47]:

'Following an appropriate study of comparable cases, together with the application of relevant sentencing principles, the judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall.  Up to this point the exercise will have been a largely objective one, but with an element of the subjective introduced by the process of instinctive synthesis, without which the case for which and the offender upon whom the sentence is to be imposed cannot be assessed.  Beyond the point at which the boundaries are identified however, the judge must exercise his or her discretion in deciding where within the range of the particular sentence should fall.'

41I come then to dispensation.  Ms Willard details at paragraph (viii) of Exhibit 1 that by way of a combination of the factors that I have referred to in mitigation, and rehearsed in these remarks, the need for a sentence which effects deterrence and adequate punishment would be recognised by imprisonment, but imprisonment with an immediate release date by way of recognisance.

42Mr Farhall confirmed the requirement for a period of imprisonment, which is really not in dispute, see [4.34].  He made no oral submission as to the imposition of the recognisance except as to how to effect same, albeit at [8] did detail such as an option.

43As detailed by the High Court in DPP v Dalgleish [2017] ALJR 1063, 1072, [49] Mr Ibrahim is entitled to individualised justice by way of the imposition of a just sentence based on the facts of this case. Further, in regard to the dispensation in this case I have had regard to all relevant factors detailed in s16A(1) and (2) and s17A.

44Mr Ibrahim, I must tell you that after consideration of all the factors put to me, which involved a difficult balancing process, I find that it would not be an appropriate sentence for you to not serve a period of immediate gaol, given the seriousness of your offending, despite the significant matters of mitigation that have been put to me.

45Would you stand? You will be convicted of a breach of s134.2(1) of the Criminal Code and I sentence you for such crime to imprisonment for three years'.

46I order pursuant to s20(1)(b) of the Crimes Act that there be a recognisance release order whereby after the immediate service of 12 months' gaol you will be released on your own recognisance of $10,000, to be entered into today, to be of good behaviour for the next three years.

47It is very important, Mr Ibrahim, that you understand that such obligation to be of good behaviour applies for the next three years.  If you breach that recognisance in any way and are brought back for sentence, you will not have the benefit of the matters of mitigation that you have had today.

48As to s6AAA, on the assumption that it applies to Commonwealth sentencing in a State Court, the Parliament requires me to explain to you the value of your plea of guilty.  The section relates to only one factor, and that is a factor of the plea of guilty.  It is therefore very difficult from a logical point of view to make that determination when your case involves numerous matters of mitigation and particular circumstances of the offending that have to be taken into account.

49However, doing as best I can, you would not have been given a period of imprisonment with a recognisance release as you have.  Had you not pleaded guilty the sentence I would have imposed would have been a sentence of four years with a non-parole period of two and a half.  You can take a seat.

50I note the comments of Dr Barth as to you coping with immediate imprisonment and your skills in regard to that, and I order that the report of
Dr Barth be forwarded electronically downstairs so that that can be taken into account in regard to Mr Ibrahim's care.

51It is necessary for that recognisance to be prepared.  It will be necessary now for it to be printed and what I might do while that is happening, Ms Willard, is stand down while you explain to your client what that all means, and in particular as I am required under the Act to emphasise the consequences of any breach.

52MS WILLARD:  I will, thank you.

53HIS HONOUR:  Thank you.

54(Short adjournment.)

55HIS HONOUR:  Thank you, I have signed that.  It is never an easy thing for any Judge to put someone into gaol, Mr Ibrahim.  I wish you well in the future. I am sure that you will get over this. I am also sorry for your family, but these things unfortunately happen when you commit criminality of this type, so good luck. The prisoner can be taken down.  I thank both counsel and their instructors for assisting in what was not an easy sentence.

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