Director of Public Prosecutions v Nguyen

[2023] VCC 1111

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02318

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

Trang Diem Thi NGUYEN

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JUDGE:	RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2023
DATE OF SENTENCE:	30 June 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 1111

REASONS FOR SENTENCE
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Subject:Dishonestly obtain a financial advantage by deception from a Commonwealth entity --- Sentence.

Catchwords:                 Registered pharmacist --- Claimed false payments from the Pharmaceutical Benefits Scheme --- Significant quantum dishonestly obtained --- Four-year period of offending --- Breach of Trust --- Full voluntary repayment --- Early plea of guilty --- No prior or subsequent offending --- Excellent prospects of rehabilitation --- Delay --- Verdins --- Need for a sentence involving a term of immediate imprisonment.

Legislation Cited:         Crimes Act 1914 (Cth).

Cases Cited:The King v Ardalan (Unreported) 14032023/BSD22/Rafter DJC --- El-Rakhawy v The Queen [2011] WASCA 209 --- R v Verdins [2007] VSCA 102.

Sentence:  Total effective sentence of 2 years and 4 months --- release on Recognisance Release Order after 6 months.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms Olivia Kefford	CDPP
For the Accused	Mr Colin Mandy SC Ms Sophie Parsons	Doogue & George Criminal Lawyers

HER HONOUR:

1When a pharmacist dispenses medication on prescription, he or she may make a claim for reimbursement to Commonwealth entity, Services Australia, (previously the Department of Health) under the Pharmaceutical Benefits Scheme. That scheme operates to subsidise pharmacists for providing products at a reduced cost to patients who have been prescribed the product by a medical practitioner who is a PBS prescriber.

2The pharmacist is paid the difference between the reduced price of the medication payable by the patient, and the full cost of the product.  The pharmacist is paid directly for dispensing the prescription. 

3The system obviously depends on the honesty of a pharmacist in both completing accurate details on the claim, and in actually dispensing the medication. 

4Over the course of a four year period from 2015 to March 2019, you, Ms Trang Diem Thi Nguyen, made 5,833 dishonest claims for reimbursement in your role as a pharmacist.  The claims were fakes because you did not actually dispense the medication. The total amount of money you dishonestly obtained for those false claims was $4,184,799.39.

5Reflecting that dishonest course of conduct, on 21 June 2023 you pleaded guilty before me to one charge of Dishonestly Obtain a Financial Advantage by Deception from a Commonwealth Entity, pursuant to the Commonwealth Criminal Code.

6Your offending is a serious fraud, reflected in the quantum of funds dishonestly obtained, in the number and repetition of dishonest transactions, and in the period of your offending. 

7Your offending also has serious consequences for your life. Having come to Australia as a refugee and having worked hard to pursue your life dream of becoming a Pharmacist, you have thrown away not only your employment, but your own Pharmacy business, your professional reputation and your registration as a Pharmacist.

8There is no doubt that a term of imprisonment is warranted for your offending. The questions for me relate to the appropriate type of sentence to impose, given the legislative guidelines in Part 1B of the Commonwealth Crimes Act 1914 and taking into account the aggravating and mitigating factors in your case.

Detail of Offending

9By way of further detail, you qualified as a mature age student in Pharmacy in 2009. You have carried out business as a pharmacist since July 2009 and have traded under the name ‘Pharmacy 4 You’ at your own pharmacy in Kingsville since at least July 2010. You were approved as a PBS pharmacist on 21 September 2010.

10During the period of offending, you lodged approximately 45,889 reimbursement claims of which 5,833 were false, being for products not provided by you to patients.

11You falsely claimed products were prescribed by 25 doctors, 20 of whom provided statements to the Department of Health confirming that they did not prescribe the products.

12Of particular note, you claimed over $1,250,000 in reimbursements for prescriptions you falsely claimed were made by Dr Samuel Youssef. You likewise claimed around $600,000 in reimbursements in connection to both Dr David Phan and Dr Minh Luu, and just over $400,000 in connection to your own doctor, Dr Edward Oludare.

13Irregularities were first detected by the Department of Health in early 2018. An investigation was commenced around that time. In September 2018 there were irregularities relating to an unusually high number of high-value pancreatic medicines purportedly being dispensed from your pharmacy.

14By way of letter dated 5 April 2019, you were made aware of the investigation and invited to participate in a record of interview.  That interview occurred on 17 April 2019. 

15In that interview, according to the Prosecution summary, you made ‘significant admissions’.  You were interviewed a second time in November 2020 and made ‘further fulsome admissions’.

16You were charged in July 2022 and indicated your intention to plead guilty at the earliest available opportunity.

17The matter was first listed in this Court on 21 June 2023 and proceeded on that day as a Plea hearing.

Objective gravity of the offending

18In assessing the objective gravity of your offending I take into account the comments of District Court Judge Rafter in the case of The King v Ardalan[1] -

Fraud on the Commonwealth is an easy offence to commit, and it is difficult to detect. The investigation and prosecution of fraud offences is complex, time consuming, and resource intensive. There are a number of important considerations to be taken into consideration. They include the amount of money defrauded, the degree of planning and premeditation, the extent of your breach of trust and responsibility, the period of time over which the offending occurred, and whether the loss is irretrievable.

[1][1] (Unreported) 14032023/BSD22/Rafter DJC

19In your case I note the following aggravating features. 

20First, the length of time covered by your offending is significant.  It occurred over a four year period and only ceased when you became aware of the investigation.  It was a course of conduct over that time.

21Second, there are a significant number of false claims – 5,833.  Counsel on the plea confirmed that it is not possible to determine how often you made the claims.  That is because the PBS reimbursements are not made for individual transactions but to cover a period of time and all claims made within that time.  On a mathematical calculation, taking account of the period of offending and the number of claims, there was an average of 4 claims per day for a daily amount of about $2,855. That is the mathematical breakdown of the claim, quantum and time frame and may not accurately reflect the reality, however there is no dispute that the false claims were made frequently and consistently over the offending period.

22Third, there is a serious breach of trust.  You have abused your professional position as a PBS approved pharmacist for your own purposes. As stated repeatedly by higher Courts, a breach of professional duties for personal gain considerably elevates the seriousness of a deception.  In El-Rakhawy v The Queen,[2] the Western Australian Court of Appeal stated –

Systematic frauds committed by professionals such as doctors or lawyers and involving large sums of money are viewed as being particularly serious. They are an abuse of the privilege and responsibility that a member of the profession has and they can impact adversely on the reputation of that profession as a whole.

[2] [2011] WASCA 209.

23Four, the amount obtained is significant.  No other case has been identified to me which reaches a similar amount.  I accept that quantum is a highly relevant consideration. Other things being equal, a higher quantum increases the seriousness of the offending. It must do so, as it is in turn a reflection of the extent to which you defrauded the Commonwealth scheme. However, quantum alone cannot swamp all other considerations.

24There was a dispute between the parties as to the level of sophistication in your offending. While I accept the Prosecution submission that this was certainly not spontaneous or opportunistic, I do not accept that there was a high level of sophistication.  A PBS claim is essentially made by inputting the details of the doctor and the details of the patient and medication. In your case you used legitimate details; that is, the names and details of real doctors and real patients.  Arguably, that made your offending more traceable than using the details of non-existent or deceased doctors or patients, or by inventing prescription numbers or other details, as has happened in other cases. In that way your offending was reasonably straightforward and simple.

25There was also a dispute about your motive behind this offending, standing as it does in stark contrast to the rest of your life. Motive is often a marker towards determining the seriousness of offending such is this. That is, whether the dishonestly obtained funds are used for greed, or out of financial need.  Greed, for example by expenditure on a lavish lifestyle, will often exacerbate the gravity of the offending, whereas a legitimate need, though not excusing the behaviour may go some way to explain and mitigate.  In my view your case sits somewhere between the two. 

26The Prosecution here argue that your offending was greed-based in that you did not have financial need for the funds.  Your Counsel, Mr Mandy and Ms Parsons while accepting that your motive is somewhat opaque, argue that yours is a need case.  Rather than being financial, they submit yours is a case of psychological need.  I agree with the defence submissions for reasons I will come to when I consider your psychological profile. 

27What is clear is that all funds were paid to a Westpac bank account in your name and operated by you. They were then variously transferred to other bank accounts operated by you, or your pharmacy, or your husband, or your family trust.

28Those monies once in your accounts were comingled with other legitimately obtained funds.  Indeed, the table of transfers into those other accounts contained in the Summary of Prosecution opening shows transfers into those accounts and cash or cheque withdrawals equate to a total of over $6,500,000.  That is, approximately $2,500,000 more than the monies dishonestly obtained by your offending.

29The total monies then transferred from those various accounts back into the Westpac account amounts to $1,141,809.87.

30What those figures demonstrate is that it is not possible for the Prosecution to determine whether any of the money you dishonestly obtained was actually used by you – as distinct from money you legitimately earnt. The only evidence that you used any portion of money improperly acquired was your admission in the record of interview that you used $780,000 to purchase a house for your brother. Even that amount is not directly traceable to dishonestly obtained funds.  I accept that in those circumstances I cannot conclude that any of the monies were used by you, other than to be placed in relevant bank accounts.

31Indeed, upon being confronted with the investigation you were able to fully repay the amount misappropriated over a relatively short time.

32Your offending in this way is unusual in that it appears misappropriated funds largely remained in bank accounts connected to you.

33Taking all of those features into account, but in particular the quantum and time frame and the breach of trust, I accept that this is a relatively serious example of this type of deception.

Relevant sentencing principles

34A Court considering the appropriate sentence for this type of offending must have as a primary consideration the principle of general deterrence.  That is, the sentence I impose must deter others from similar offending.  That is so because offending such as this is often difficult to detect.  Systems such as the PBS rely on the integrity of the professionals entrusted with the administration of those schemes.  They are apparently easy to abuse and in the case of the PBS the payments go directly to the pharmacist. 

35I must also take into account the principles of denunciation and just punishment.  On behalf of the Court and the community it serves, the sentence I impose must express the community’s disapproval and condemnation of this type of dishonesty against the public purse.  Taxpayers ultimately foot the bill for such frauds.  The sentence must discourage abuse of a scheme set up for the public good.

36In your case, the Prosecution submit that given the length of time over which the offending occurred, and the repetition of offending behaviour, the sentence I impose must also deter you from ever engaging in such behaviour again.

Personal circumstances of the offender

37Mr Mandy and Ms Parsons on your behalf provided helpful written and oral submissions.  In addition, I have had the benefit of reading a comprehensive Psychological report authored by Dr Angela Sorotos and dated 23 May 2023, alongside a report from Senior Consultant Psychiatrist Dr Samir Ibrahim OAM dated 29 April 2023 and a report from your treating Psychologist Ms Darisse McCartney dated 23 March 2023.

38You were born in Vietnam and were raised by your mother, who you describe as being ‘not emotionally available’ for you and who you report being at times physically abusive. You describe your childhood as being lonely and neglectful. You completed the equivalent of Year Five in Vietnam. You grew up alongside two step-brothers and two half-brothers.  You did not know your father until you were 23 years old.

39At age 11 in 1984 your mother organised for you to leave Vietnam on a boat. She did not go with you but sent you with your aunt who at that stage was pregnant. You travelled for three days with 108 people on the boat, arriving in a refugee camp called Palau Bidong in Malaysia.

40Your aunt gave birth at the refugee camp and your task essentially was to act as a maid looking after the baby. 

41You immigrated to Queensland with your aunt and her family in 1985. You state that you were made to work a lot during this period for your aunt and describe yourself as being like a ‘slave’.  You were responsible for the majority of the household chores.

42In 1986 you moved with your relatives to Melbourne attending grade 6 at Footscray Primary School. You had been engaged in an English school in Queensland and on your move to Melbourne you coped well with the language requirements. It was clear you were intelligent and studious. However you had few friends and were not confident in your new environment. You progressed to Footscray Girls’ High School and began excelling academically; however, you continued to lack a peer group and you suffered bullying and teasing on account of your ethnicity and also your focus on your studies.

43Your mother, stepfather and their biological children relocated to Australia in 1988.  It was clear to you even at that stage that you were not welcome by your stepfather as part of that family unit. You generally describe your relationship with him and your half-brothers as somewhat distant, though note that you had a close relationship with one of your half-brothers, who passed away in 2016.

44You successfully passed Year 12; however, your dream of getting the marks to enter a Pharmacy course was not realised. You were devastated and you felt the disappointment of your family. You did successfully apply to undertake a Bachelor of Science degree at the University of Melbourne. You started first year however your heart was not in it.  Ultimately, you moved to Sydney.

45In Sydney, you undertook the Higher School Certificate for a second time in pursuit of your dream to become a Pharmacist. Again you narrowly missed the mark. You returned to Melbourne, undertaking part of a Commerce degree at the University of Melbourne but were similarly dissatisfied.

46At around the age of 22 you formed an idea to marry an old boyfriend. He was a person from the same village in Vietnam and who you had met through your mother. You and he had kept contact through your teenage years. You returned to Vietnam and your wedding to him occurred in November 1995 when you were about 23 years old. You then returned to Australia and he arrived about two years after the wedding. You sponsored his visa.

47You both studied a pastry chef course before opening a cake shop in St Albans. You report that you successfully ran this business for around eight years.

48At age 28 you became pregnant with your first child. You have two children with your husband, a son and daughter. They are now aged 21 and 22.

49Unfortunately your marriage to their father was not a happy one. You continued to feel lonely. A dispute arose wherein your husband blamed you for administrative errors that led to the failure of his brother’s sponsorship application to move to Australia.

50Your dream of being a Pharmacist persisted and eventually you wrote to the Pharmacy College in Parkville.  You were advised to undertake Chemistry and Maths VCE subjects.  As a 31 year old you returned to study for that purpose.  You achieved a mark of 98 in Chemistry and 99 in Maths, finally gaining you entry to Pharmacy via Monash University. That was a high point in your life.

51As at 2004 you were studying, running the cake shop, and the primary carer for two young children.  Your marriage was failing.

52At age 36 you undertook a permanent placement in Ballarat as a student.

53You achieved registration as a Pharmacist in 2009 and in 2010 the opportunity arose to buy your own Pharmacy Business, representing another high point in your life and career.

54Between ages 41 and 46 you worked hard, paying off the business and supporting your family. Unfortunately, your marriage was not improving and you suffered depression.  You were not sleeping well. 

55You separated from your husband but continue to live in the same house to this date. Culturally you feel constrained in your ability to leave him.  He has not been supportive of you in the wake of this offending.  His family have been similarly unsupportive.

56You cite your friend, who is a nurse, and several other friends from the Scout group in which you are engaged, as your main supports.

57Your children have both been in court throughout these proceedings and have provided moving testimonials about you and their relationship with you. They have both followed in your footsteps and are currently studying pharmacy.  They speak of your generosity and compassion, highlighting your volunteer work and your work at home, particularly in the years that you were studying pharmacy. Your daughter says of you, ‘she always advise me to donate and help the poor and the unfortunate’, and your son says that you are a ‘very gentle, generous and caring person… In 2019, she, my younger sister and I volunteered to do gift-wrapping at Foodbank in Yarraville for the less fortunate.’ Your daughter describes you as her ‘biggest supporter’ and your son calls you his ‘anchor’.

58I have also received letters from three friends involved in the Phu Dong Vietnamese Scout group.  Importantly those letters are addressed to the Court and written in full knowledge of your offending. The authors describe you as a generous and dedicated person who has contributed to the Vietnamese community and assisted the group in its times of financial difficulty.  They highlight your remorse for your offending conduct.

59Thu Canh Le says of you –

She was a proactive scout-parent who had led the whole scout group to the biggest fundraising event we had ever had, and it was a great success for the group with much needed finance… We, including her partner, were involved inorganizing a Vietnamese-Philippino reunion in 2015 where we thanked our Philippine friends who helped us when we were in the refugee camp. Trang provided meals and accommodation to our guests even though she had never stayed in the refugee camp.

60Tuan Truong writes –

She has always shown a great example for the young scouts of being honest, hard-working, helpful and caring… Trang organized a fund-raise where we did a sausage sizzle at Office Works at High Point, Maribyrnong, and Trang spent her weekend to help out… She then planned, with the help of all of us scouts and scout-parents, a massive fund raising event on the Lunar New Year's festival in three Asian dominated suburbs of St Albans, Footscray and Springvale in early February 2013. We were able to raise $15,000.00 for our scout group so we could buy camping equipment and lots of other necessities… She also has been an emotional support for many Vietnamese female parents.

61Bon Nguyen, the former president of the Vietnamese community in Australia, speaks positively of your involvement in that organisation as well as your ongoing volunteer work and charitable donations towards numerous causes.

62All of the referees note that this offending is entirely out of character for you. You have a strong commitment to those less fortunate than you no doubt stemming from your early life experiences.

63It is clear that you are still very well-supported and well-regarded by the community around you.

Circumstances in the lead up to your offending

64In an effort to illuminate the circumstances of your offending, your Counsel described a confluence of events which led to a decline in your mental health in the lead up to and around the period coinciding with the beginning of this offending in 2015. 

65In 2014, you were in a serious motor vehicle accident.  You had been experiencing severe headaches which were affecting your eyesight and in particular your peripheral vision.  The accident was a result of those issues. Ultimately they were found to relate to a pituitary tumour which required emergency surgery to remove.  That tumour ultimately returned 12 months later. Other para-thyroid tumours were also discovered in 2016.

66You were diagnosed with Multiple Endocrine Neoplasia link type 1 syndrome (MEN1), which is a hereditary disorder that can cause typically benign tumours. These have to be routinely removed via radiotherapy or surgery, or a combination of both. This medical condition requires ongoing scans and check-ups. Your general practitioner, Dr Edward Oludare, notes that early detection and removal of tumours is key to the management of your condition.

67In September 2022 it was discovered that there were some tumours growing in your pancreas and you are currently awaiting surgery. You also have recently been diagnosed with Type 2 Diabetes and are currently on a number of hormone replacement therapies. Your medical issues are a significant source of anxiety for you. In particular, the MEN1 is a serious lifelong condition and I take that into account.

68Returning to the period leading to the offending. You also had a dispute with your step-father about a financial arrangement.  That related to a house you and your husband had purchased with his help.  He insisted that he was entitled to money from the sale of that property.  As a result, you and he did not talk for some time.  Although your relationship had never been harmonious, you found that very difficult to deal with.  It no doubt impacted on your relationship with your mother.

69In 2016 you also prematurely lost your half-brother with whom you were close. You then discovered that he was caring for your biological father but hadn’t told you.  You describe his death and that discovery to have been distressing to you.

70In that context of your declining health, the financial dispute with your stepfather, the breakdown of your marriage and the death of your half-brother your Counsel states that you started to deviate from normal behaviour.  You describe erratic behaviour and feeling that the tumours were causing alterations to your normal cognitive function.  That is not a diagnosis but your own experience of your physical and consequent mental health.

R v Verdins[3]

[3] R v Verdins [2007] VSCA 102.

71In relation to your mental health, Dr Sorotos confirms a diagnosis of a major mental illness being Major Depressive Disorder. That is not merely reactive to your current circumstances but according to Dr Sorotos is a condition which was in existence at the time of your offending and is long-standing.  

72She describes you as a victim of developmental abuse, school bullying, racism and says you have a number of vulnerability factors. 

73Dr Sorotos further found that you demonstrated ‘definite evidence’ of anxiety, guilt, tension and distractibility. 

74In the past you have become suicidal when antidepressant medication was increased.  You report attempting suicide on one occasion about 8 years ago after an argument with your husband.  You have been prescribed Duloxetine for your depression by your practitioners, and melatonin for sleep issues.

75Those findings by Dr Sorotos tally with the opinions of your treating psychologist and psychiatrist. After your initial record of interview you voluntarily engaged in four treatment sessions with Ms McCartney in 2019. She says that you presented with symptoms of a Major Depressive Disorder as well as a Generalised Anxiety Disorder. You returned in November 2021 and engaged in eleven further sessions until August 2022. Ms McCartney noted a decline in your mental health between February and August 2022. Your treatment with her is ongoing.

76Your general practitioner also referred you to psychiatrist Dr Ibrahim in March 2021 requesting management of what your GP described as your psychiatric disorder. You attended on Dr Ibrahim in that year and as recently as April of this year.

77Dr Sorotos says you have a significant history of ‘chronic depressive features’ alongside ‘significant trauma and problematic personality features which… are highly likely to have been implicated in the offending.’  In her expert opinion your offending appears to have been precipitated by a combination of your low self-esteem, your mental disorder, a negative mood state, feelings of disempowerment, early life experiences of poverty and trauma, and problematic personality traits.  She states those factors, unresolved for some years, perpetuated ‘faulty thinking that sought to facilitate two primary goals through [your] offending – the escape/avoidance of [your] distress, and more prominently, a restoration of the extreme disempowerment [you] faced throughout [your] life characterised by abandonment, neglect and poverty.’ 

78Dr Sorotos states, ‘It is my view that her pathology escalated to such a severe level that she eventually indulged in the offending behaviours as a means to counter the poverty in which she grew up.’  That is, the poverty of affection and attachment as well as financial insecurity. 

79The Prosecution accept this is a cogent identification of your motivation for engaging in the offending.

80Your Counsel did not submit that your diagnosis works to reduce your moral culpability, however suggested that Verdins limbs three and four may be applicable in your case so as to moderate the weight I am to give general and specific deterrence in the sentencing exercise.  The Prosecution dispute those submissions.

81I accept that your entrenched personality profile and the diagnosis of a chronic pattern of Major Depression in the context of your life experiences, go a significant way to explain your offending.  It is, in short, your psychological need for security which seems to have precipitated your actions in squirreling away large sums of money which you did not seem to use.  Those descriptions given by Dr Sorotos also confirm this is not a greed based offence, but one of psychological need.

82In my view, that diagnosis does enliven Verdins limb 1. The cogent descriptions of your psychological profile and mental health state to my mind demonstrate a connection to your offending which lowers your moral culpability to some extent.

83In contrast, I do not accept that your diagnosis of Major Depressive Disorder is such that you are not an appropriate vehicle for general deterrence.  Put simply, your thinking was not so disordered that the community would not expect you to be used as a vehicle through which to deter others.

84Similarly, specific deterrence applies, although in your case I expect it has almost no work to do.  You are assessed as a low risk of reoffending.  You are overwhelmed by the experience of these proceedings. They have obviously been a distressing and salutary experience for you. You told Dr Sorotos ‘I don’t want to go through this situation again. Mentally it is destroying me. I am very remorseful. I wish I didn’t do it. I will never do anything like this again. It is too much pain and hurt.’ Your reality is that you will unlikely be in a position to reoffend in any similar way in future.

85In relation to limbs five and six of Verdins your Counsel, citing comments made by Dr Sorotos in her report, submits that you will experience significant difficulties in the custodial environment due to your mental and physical health, as well as your ‘generally naïve disposition’.

86The Prosecution do not dispute the applicability of Verdins limbs 5 and 6.

87I accept that imprisonment will weigh on you more heavily than on a person without your psychological profile and without Major Depressive Disorder and features of anxiety. 

88I accept there is the real prospect of a decline in your mental health in that environment, and I must give that consideration in light of your past suicidal ideation and attempt.

Prospects of rehabilitation

89I accept that you are a person of good character aside from this offending. You are fifty years old with no prior criminal history, nor any subsequent matters, though I again note the lengthy period time over which this offending was carried out.

90You have demonstrated your contribution to the community; in particular, you have had involvement in many charitable activities over a long period of time.  You are well regarded and supported by your Vietnamese community. You are intelligent, a hard worker and have an excellent work history.

91Your fulsome admissions and your assistance to the authorities are said by your Counsel to demonstrate sound prospects of rehabilitation. The Prosecution likewise accepts these prospects are good. 

92You have taken steps towards addressing your mental health by way of psychological and psychiatric treatment. Your treaters note that you have insight into your mental health symptoms.

93Although there is ongoing work to do in relation to your personal mental health, in my view your chronic depression is no longer likely to result in criminal behaviour. In my view your prospects of rehabilitation are extremely good.

Other Circumstances

Delay

94One of the most significant matters relied on by your Counsel in mitigation, is the issue of the delay in this prosecution. 

95Higher Courts have stated that delay is a relevant factor in sentencing, and is relevant in two ways. First, because of the great uncertainty created for a person who has the prospect of criminal prosecution and its consequences hanging over them.  That state of uncertainty not only affects a person’s ability to continue with their normal life, but of itself is anxiety provoking and potentially deleterious.

96Second, because in the intervening period a person may demonstrate their rehabilitation. 

97Both of those considerations are relevant to you. This prosecution and the prospect of punishment has hung over you since you were interviewed in April 2019.  There has been no satisfactory explanation for that considerable period of time.

98There does not need to be someone at fault for delay to be considered.  What is important is that the delay is not caused by the offender either obfuscating or obstructing the administration of justice. Here, the delay is not of your doing. In fact, you did everything you possibly could to expedite the investigation process and progress through the criminal justice system.

99A range of evidence was available to investigators in the Department of Health prior to your interview.  Services Australia had provided various documents relevant to your PBS approval as early as May 2018.  As at October 2018 the informant had access to an Approval Claims Report relating to PBS claims made by you between January 2016 and October 2018. As at March 2019 a similar report was obtained for the period March 2014 to March 2019.

100In March 2018, the informant met with Dr Phan and returned in June at which time Dr Phan supplied a verification schedule of prescribing data and signed his statement. Similar statements were obtained from Dr Thigh Nguyen in August 2018, from Dr Bhargava in September 2018, from Dr Chow in December 2018, and from witness Trang Pham in March 2019, among others.  Throughout that period of course the quantum of your deception was increasing.

101Those materials were no doubt the basis for the decision to interview you.  You voluntarily attended for interview in April 2019.  As your Counsel rightly says, not only did you voluntarily attend that interview but when the allegation was put to you that you had made or authorised the making of false claims for payment from the Pharmaceutical Benefit Scheme and had received these payments, you immediately stated, ‘The allegation is correct’.  Your story in relation to your motivation for doing so was somewhat fanciful, however your admissions to having knowingly made those false claims were accurate.

102The investigation then continued in the light of your admissions. However it continued very slowly. The statement of the informant demonstrates that although a number of doctors were approached to ascertain the validity of various prescriptions, at times periods of up to 9 months would go by before any follow up.  Apart from making contact with your solicitor in June 2019 to provide him with a PBS Verification schedule, you heard nothing from investigators for that year.

103On 27 March 2020 you initiated contact with the informant by email seeking to repay the misappropriated money. He did not respond until May. On 10 June 2020 you made the first repayment via bank cheques in the sum of $2,300,000 and $200,000.  You provided a signed Voluntary Acknowledgment of Incorrect Payments form and a completed and signed PBS verification schedule.  You met with the informant, at your own instigation several more times throughout June and October 2020 in order to make repayments.

104It appears there were some difficulties for the investigators in determining precisely which transactions were fraudulent.  Between June and November 2020 they provided you with various lists of claims and asked you to indicate which were fraudulent and which were legitimate.  You did so and each time you met to make a repayment you signed further Voluntary acknowledgement of incorrect payments forms.

105The informant says that during the meeting of 28 October 2020 he gave you a compact disc containing a schedule of confirmed and alleged false claim.  He says, ‘[I] asked the defendant to review them.  I said I was happy to consider any feedback she might have and could take that into account when formulating a final list of alleged false PBS claims.’ He flagged his intention to offer a second interview.

106On 25 November 2020, you participated in a further record of interview to clarify some of the matters you had raised in your initial interview, and to clarify the validity of numerous transactions.  You participated, answering all questions, and making what the Prosecution summary describes as ‘fulsome’ admissions.  You signed a schedule confirming the falsity of various claims.

107By late 2020 you had repaid most of your debt and by March 2021 you had repaid your debt in full.

108Nonetheless, it was not until July 2022 that the decision was made to lay charges against you, some 3 and a half years after your first interview, 20 months after the second and 15 months after you had fully repaid your debt.

109I do not and cannot accept the Prosecution submission that this is not inordinate because it is comparable to cases of similar nature. General deterrence is so significant in these types of cases because of the difficulty of detecting such frauds.  But here the context is a woman who voluntarily attends for interview; who immediately admits her deceptions; who then provides responses to lists of transactions identifying which were and were not fraudulent; who asks to start making repayments and does so.  Clearly there was enough information available to the prosecuting body at that stage to assess the amount of the fraud and to then allow her to make reparation.

110Ultimately Ms Kefford agreed that there is no satisfactory explanation for the delay either by the informant or prosecuting authority, and that delay here works to mitigate sentence. 

111The Prosecutor also conceded that it is a very unusual circumstance of this case that full repayment had been made before any charges had been laid.

112I accept that you are the person who has suffered the anxiety of the pending prosecution during that period of time.  I must view that through the prism of your chronic depression and anxiety.

113I accept that you have demonstrated a significant level of cooperation with the prosecuting authority throughout the investigation.

114In addition to those matters I note that despite the importance of specific and general deterrence, there was no intervention by any authority to restrict your registration as a Pharmacist.  It was you who took steps about a year after your first interview to voluntarily give up your registration.

115You told Dr Sorotos that you gave up your registration because you felt ‘so bad’ and ‘I couldn’t carry on.  I am not that person.’  You continued to be employed as a pharmacy assistant.

116In relation to the second aspect of delay and efforts to rehabilitate, I accept during that period you have not reoffended in any way and have taken steps to remove yourself from your professional role, voluntarily giving up your registration, and have repaid the monies owing in full to the Commonwealth.  I take those matters into account.

Plea of guilty

117You pleaded guilty to this offending at the earliest available opportunity. Your plea has facilitated the course of justice. It is of significant utilitarian value, saving the Court and the community the cost and time of a trial which is likely to have been lengthy, involving over 30 witnesses and no doubt significant documentation.

118I take that into account.

119I also take into account that your plea was entered during the period of the Covid-19 pandemic and where there is an ongoing backlog through the court system.  Higher Courts have stated that a plea entered during that period must be met with a palpable reduction in sentence.

Remorse

120Most importantly, your Counsel submits that your extensive admissions are evidence of your genuine remorse. I accept that is the case.  Although you lack some insight into your offending and are still grappling with why you committed this offence, I accept the comments of Dr Ibrahim that you are in ‘deep remorse’.  There is other evidence in the various testimonials along with the expert reports of your ongoing expressions of remorse for your offending.

121Your repayment of all monies owing is a very tangible expression of the fact you are sorry for and take responsibility for your offending.

122Similarly, your voluntary cancellation of your registration, seemingly out of guilt, reflects your feelings of shame and remorse about what you have done.

Extra-curial punishment

123I take into account that you have experienced extra curial punishment as a result of your offending.  That is, you have been punished publicly by way of loss of your reputation and employment.  The law is not settled in this regard.  On one hand that is the ordinary and natural consequence of committing offences of dishonesty in the context of your employment.  On the other hand, many people commit offences with no consequence to their employment or public reputation. 

124Your prospect of employment as a pharmacist in the future is unlikely. Since giving up your registration you have been assessed as failing the suitability requirements for general registration as a pharmacist by AHPRA.  As at today, without registration your professional career and dream is over.  I take that into account.

Current Sentencing Practices

125I have also taken into account current sentencing practices for offences such as these.  The Prosecution helpfully provided me with a table of comparable cases which I have considered.

126There are always similarities and differences between offences and offenders which lead to a variety of sentence. Sentencing is not a mathematical task.  It is a synthesis by the sentencing judge of many different factors.  Here, as with many cases, those factors tend to pull in opposite directions. Ultimately I am required to impose a just sentence and that is what I have endeavoured to do. 

Submissions on sentence from parties

Prosecution

127The maximum penalty for this offence is 10 years imprisonment and/or a monetary penalty equating to just over $100,000.

128Before ordering a term of imprisonment I must be satisfied that all the circumstances of your case mean that no other disposition is appropriate.  I am so satisfied due largely to the breach of trust, high quantum, time frame and repetition of offending here.

129The prosecution submit that a sentence of immediate imprisonment is warranted and that a wholly suspended sentence would be manifestly inadequate. 

Defence

130Your Counsel submit that in the unusual circumstance of your case I should impose imprisonment in conjunction with a recognisance release order which sees you released immediately. The circumstances relied on to found that submission include –

a.Your cooperation and fulsome admissions;

b.Your repayment of all monies owed prior to being charged with any offending;

c.The significant delay;

d.Your early plea of guilty, reflective of remorse;

e.Your psychological profile and diagnosis of major mental disorder;

f.Your prior good character;

g.The extra curial punishment by way of loss of your career and reputation; and

h.Your good prospects of rehabilitation and ongoing support of your children and friends.

131Ultimately I have concluded that the seriousness of your offending warrants an immediate term of imprisonment.  However, and for the reasons outlined by your Counsel, the portion of imprisonment to serve before being released to a recognisance release order will be substantially moderated.

Sentence

132On Charge 1 of Dishonestly Obtain a Financial Advantage by Deception from a Commonwealth entity, you are convicted and sentenced to a term of 2 years and 4 months’ imprisonment. 

133I make an order pursuant to paragraph 20(1)(b)(i) of the Commonwealth Crimes Act that you are to be released after you have served six months in custody upon a recognisance on the condition that you be of good behaviour for a period of 1 year and 10 months with yourself as surety in the sum of $2,000.

134I declare that you have already served 9 days imprisonment and that that period should be reckoned as having been served under this sentence.

S 6AAA declaration

135But for your plea of guilty the term I would have imposed would have been one of 4 years imprisonment with a non-parole period of 2 years imprisonment.

Ancillary orders

136For administrative purposes the Prosecution seeks a reparation order for $4,184,799.39. I grant this order pursuant to s 21B of the Crimes Act 1914 (Cth).