Director of Public Prosecutions v Ryan
[2023] VCC 1871
•13 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAMMY RYAN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 August & 4 October 2023 |
DATE OF SENTENCE: | 13 October 2023 |
CASE MAY BE CITED AS: | DPP v Ryan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1871 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Dishonestly obtain financial advantage by deception from Commonwealth entity – attempt to dishonestly obtain financial advantage by deception from Commonwealth entity
Legislation Cited: Crimes Act 1914 (Cth)
Cases Cited:Bugmy v The Queen [2013] HCA 37,
Marrah v The Queen [2014] VSCA 119Sentence:31 months’ imprisonment: to be released after serving 12 months on recognisance of $2,500 to be of good behaviour for 3 years; reparation of $81,228.20
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks | Office of Public Prosecutions |
For the Offender | Ms B. East | Law and Advocacy Centre for Women Ltd |
HIS HONOUR:
1Tammy Louise Ryan, you have pleaded guilty to two offences on an indictment. The first of those is that you dishonestly obtained a financial advantage by deception from a Commonwealth entity, being the Department of Human Services. The maximum penalty for the offence is imprisonment for 10 years.
2The offending occurred between 13 March 2018 and 20 March 2019 and involved a total of 115 false claims on Medicare, by which you obtained payment from Medicare of $81,228.20 to which you were not entitled.
3You also pleaded guilty to an offence of attempting to dishonestly obtain a financial advantage by deception from the same Commonwealth entity. The maximum penalty for this offence is also imprisonment for 10 years.
4This offending occurred between 16 June 2018 and 20 March 2019 and involved 13 further false claims upon Medicare in the total sum of $2,370.80.
5Each of these offences is charged as a rolled-up count.
6You have also admitted a prior criminal record which contains, amongst other offending, two court appearances for obtaining property by deception, the first being on 5 June 1995 at Dandenong Magistrates Court involving 94 separate charges of obtaining property by deception and two of attempting to obtain property by deception. And then on 15 July 1996 you were dealt with for a further 15 offences of obtaining property by deception, as well as breaching orders relating to the offending for which you appeared on 5 June 1995.
7You have other convictions, but they are of a different character and in the main relate to contravening family violence intervention orders.
8The prosecution tendered and read to the court a Crown opening upon plea dated 14 July 2023. No dissent with the content of that document was made on your behalf and I take it as an agreed statement of facts for the purpose of sentencing.
9You are now aged 47 years. The offending occurred when you were aged between 42 and 43 years and arose as a result of your positions as a director of the Officer Family Health medical practice and practice manager of that business. You were appointed a director on 17 March 2016 and had been the practice manager since about that time throughout the period of your offending. That position involved a number of responsibilities, one of which was the lodging of claims to Medicare on behalf of the practice.
10Between 13 March 2018 and 20 March 2019 you used the provider numbers of eight separate medical practitioners employed by the Officer Family Health business to electronically lodge 115 claims containing false information. The lodged claims falsely stated that the medical practitioners employed by Officer Family Health had provided, in total, 1,591 professional services relating to 757 individuals enrolled in Medicare that were eligible to be claimed under the medical benefits schedule. Additionally, 816 bulk bill incentive payments were claimed. In some claims you falsely claimed that the services were provided to you.
11As a result of these claims, Medicare benefits totalling $81,228.20 were paid electronically by Medicare to a Commonwealth Bank of Australia account in the name of Officer Family Health, of which you were the sole signatory. It is that offending that is the subject of Charge 1 on the indictment.
12In addition, you made a further 13 false claims relating to 49 professional services and 16 bulk bill incentive payments in the total sum of $2,370.80. Those claims were not paid by Medicare and they are the subject of the rolled-up Charge 2 on the indictment. Those claims stated that the services were provided to you, your dependent and former patients of Officer Health, when in fact none of those services had been provided.
13None of the money that you obtained as a result of the activity the subject of Charge 1 has been repaid.
14Authorities were first alerted to the offending in August 2018 as a result of a tip‑off. An investigation commenced soon after that. You were invited to participate in a recorded interview with investigators on 5 May 2021. You declined. It seems you provided no assistance to the investigators endeavouring to trace the facts relating to your extensive criminal conduct. You pleaded guilty to the offending at the committal hearing on 20 February 2023.
Personal Circumstances
15Your counsel provided me with a helpful and comprehensive outline of plea submissions dated 10 August 2023, along with a report from Daniella Kocic, psychologist, dated 4 August 2023, based on an assessment interview with you on 19 July 2023.
16The outline of plea submissions was marked Exhibit 1 on the plea hearing. The report of Daniella Kocic was marked Exhibit 2. I was provided with an application and summons for an intervention order dated 15 July 2019, a further such application dated 22 January 2020, along with some screen shots of social media communications which apparently referred to you, and a photocopy of an envelope addressed to you, the postage mark on the envelope suggesting that the posting had occurred on 19 January 2020. It contained a piece of paper upon which some offensive comments about you were made.
17That bundle of material was Exhibit 3 on the plea hearing. I was also provided with a judicial monitoring report arising from the community correction order that had been imposed upon you and which you were serving, at the date of the report being 25 July 2023. That is Exhibit 4. Exhibit 5 is a bundle of certificates of completion of various rehabilitative programs that you have been engaged in whilst in custody. Exhibit 6 is documents relating to your medical issues during the time that you have been in custody dated 2 October 2023. Exhibit 7 is some further medical records from the Royal Women's Hospital dated 19 September 2023 and relate to the ovarian cyst to which reference has been made during the course of the plea hearing and again today.
18The report from Ms Kocic raised a number of issues which supported submissions made on your behalf to the effect that at the time of the offending you were suffering from mental disorders which, combined with your difficult upbringing, operated to reduce your moral culpability for this offending.
19During the course of the plea hearing I indicated that, on the basis of the material in the report, I did not find sufficient basis for those submissions and accordingly your counsel sought to have Ms Kocic called to give evidence at the hearing. She did so in more recent times and was examined in-chief and cross-examined. I found her to be an unimpressive witness. I found her general analysis to be lacking in penetration, superficial and too readily accepting of your explanations to her and assertions as to the sequence of events giving rise to the symptoms of post-traumatic stress disorder, which the report suggested had been present at the time of your offending conduct.
20It seemed clear to me that the material available did not support your claim that the alleged bullying had been present throughout the period of your offending. The alleged bullying did not seem to arise on the material available until well into the period of your offending and could not, therefore, underpin a submission that it was causative of your offending conduct.
21It is true that you may well have been suffering from anxiety and depression and that you may have been drinking too much, but none of that, in my judgment, supported a submission that your moral culpability was reduced as a result of those mental impairments.
22An example of the explanations that you provided to Ms Kocic to support the opinions that she formed can be found at paragraphs 81 and 82 of the report, wherein Ms Kocic reports that you told her, quite disingenuously in my opinion, that there was no planning around the offending. The number of transactions that you had to falsify in order to obtain the 81,000 odd dollars, the subject of Charge 1, and the attempts the subject of Charge 2, could only have involved a very considerable degree of planning, a very considerable degree of analysis and care to obtain and mis-use records of medical practitioners and of a very large number of patients who were entitled to their privacy. You exploited your position of trust in an extraordinary and sustained way for a little over a year.
23You went on, at paragraph 82, to tell Ms Kocic that you did not agree with the monetary figure of the claims which were paid to you, being $81,228.20. Instead you believed that the total amount was approximately $20,000. You made that assertion on 19 July 2023, which was not far short of the first date of the plea hearing.
24You also indicated that the period of the offending did not span one year, as the documents demonstrate, but that the offending occurred from the end of 2018 to March of 2019. Again, those instructions to Ms Kocic were clearly false and you must have known that they were false when you made them.
25By your plea you have accepted the prosecution case that the offending occurred over the full period of a little over 12 months, between March of 2018 and March of 2019, and that it involved the full amounts set out in the two charges.
26Further of note, in Ms Kocic's report from paragraph 114 she refers to the inventory which is dealt with in that portion of the report arising from a 195-item self-report questionnaire. At paragraph 119 she indicates that your profile:
‘… was considered to be of questionable validity, that there was no indication of socially desirable responding or inconsistent responding, however, her disclosure index was elevated suggesting an over-reporting of symptoms. Her debasement index demonstrated a mild elevation suggestive of attempts to feign symptomatology to appear more pathological, or due to her high levels of distress at the time of test-taking.’
27All of that led me to treat the opinions formed by Ms Kocic as being of questionable value. To the extent that those opinions went to the question of your moral culpability, I did not find them persuasive. Her evidence in this court further undermined any confidence that I might have had in her opinions as to your moral culpability.
28I accept that you now suffer from a number of mental disorders. Your counsel has submitted in the course of her submissions that you meet the diagnoses of complex post-traumatic stress disorder and persistent depressive disorder, and that those conditions are likely to make your period of incarceration more onerous than for a person who did not have those conditions. Also, it seems to me that Verdins principle No.6 is either made out or close to being made out and I consider that there is a real risk that your mental health will deteriorate further during your period of incarceration.
29I further take into account the pain and suffering you presently feel and the difficulties of your dealing with this more recent physical complaint, the ovarian cyst, the fact that you will have to go through surgery in less than ideal circumstances whilst in custody and that pain management may not be as well regulated as you would ordinarily receive in the community. All of that goes to increase the burden on you of the term of imprisonment that I shall be imposing today. I take those factors into account in your favour.
30It was submitted on your behalf that there was no evidence that the money was used to obtain luxury items. It was suggested that it was used to cover bills and to keep the medical practice from going bankrupt. I do not have evidence to that effect. I have no evidence before me, in admissible or otherwise reliable form, as to what you did with the money. The fact that you sought to play down the amount that you obtained very considerably in your interview with Ms Kocic does not give me any basis for the conclusion that this money was required to save an ailing business. In any event, the authorities suggest that that fact may be of very little relevance in these particular circumstances.
31I do not accept that any online abuse that you were receiving during the period of your offending, to the extent that there was such abuse, was either a causative factor or in any way a mitigating factor so far as your offending is concerned.
32Ms Kocic does provide a fairly detailed history of your early life and education. It is clear that you come from a difficult background, your mother had a mental illness and your parents' marriage broke up when you were five years of age. Your father then re-partnered and it seems that you had a quite stable period from age five through to age 17 or 18. However, that broke down because, according to what you told Ms Kocic, you found a 'hidden jar of money' which you used to fund your education fees, resulting in a physical altercation between you and your father's then wife, requiring police intervention. It was as a result of that that you were required to leave the family home. However, you reconciled with your father later and continued to have a good relationship with him.
33You have had a number of different relationships since that time. You have two grown-up children and you have their support. You were in a relationship at the time of the offending and that broke down some time in 2020 and it seems gave rise to your offending in relation to various intervention orders that are shown on your criminal record.
34You have pleaded guilty and you did so in the aftermath of the Covid pandemic, at a time when the courts have been struggling and are, to some extent, still struggling to overcome the backlog of cases that built up in that time. You get special credit at this time for your pleas of guilty. It was suggested that your pleas are also indicative of remorse. To an extent they are, but your remorse, I think, is tempered by your ambivalence as to an acceptance of the true facts, suggested by your attempt to mislead Ms Kocic as to the period over which the offending occurred and the amount that you obtained as a result of your dishonesty. So, whilst I accept that there is a degree of remorse, it seems to me that that has to be tempered by your lack of acceptance of your full criminal responsibility.
35I note also that in more recent times you have bought a hairdressing salon. I do not know the details of how much you paid for it but I note that no attempt has been made to repay any of the money that you obtained as a result of this offending conduct. Consequently, I make the reparation order in the full sum of the money that you obtained.
36Another point made well by your counsel is that there has been a very considerable delay since your offending and when you were first charged on summons in March of 2022. The delay may be put down to the difficulties of investigating offences of this nature, particularly when you offered no assistance whatsoever to the investigators. Nevertheless, it is a period during which it must be acknowledged the matter has been hanging over your head and would have caused you considerable stress and anxiety, exacerbating symptoms that you may well already have had. The delay is undoubtedly a mitigating factor which I take into account in your favour.
37It was suggested that your deprived upbringing brings you within the sentencing principles arising from the cases of Bugmy v The Queen[1] and Marrah v The Queen[2]. It was submitted that that fact also moderates your moral culpability. I am not persuaded that those principles apply. I do accept, of course, that the evidence as to your upbringing is relevant and I take that into account in a general way. I accept the submission that Verdins principles 5 and 6 are to be applied in moderation of sentence.
[1] [2013] HCA 37
[2] [2014] VSCA 119
38It was suggested that you have good prospects of rehabilitation. I would assess them as fair. But it is to be hoped that the fact that you are to be sentenced to a term of imprisonment will have a deterrent effect upon you and lead you to a more settled and a way of life free from further offending.
39I must take into account the provisions of s16A(1) and s16A(2) of the Crimes Act 1914 (Cth) and I must take into account s17A(1) of that Act which requires me not to impose a term of imprisonment unless, having considered all the other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances.
40The prosecution provided me with a set of submissions on sentence dated 9 August 2021 and I take those into account. In that document at paragraph 9, Mr Keks for the prosecution points out, and I quote:
‘The offender made 128 claims, each of which claims payments for batches of services. In total she falsely claimed payments for 1,640 medical services which had not in fact been provided, and 832 bulk bill incentive payments which were not due. The offending constitutes a sustained and systematic course of conduct, the brazen nature of which is epitomised by the fact that some of the claims she made falsely asserted that medical services had been provided to her.’
41He then notes how you abused your position as a director and practice manager of a medical practice. You had access to the personal details of patients and to the provider numbers of doctors who worked at the practice, you exploited that access for your personal gain, you made successful claims falsely asserting that 757 patients had received medical services which they did not receive. Your use of the details constituted a violation of each of the patient's personal integrity. The claims were made using provider numbers of eight doctors, risking their professional reputation and inculpation in your offending, and your offending was a substantial breach of trust.
42Mr Keks also points out that, as described in the authorities which are summarised in his submissions, the offending involved exploitation of a scheme which relies on the honesty of participants, especially those involved in the provision of medical services. You knew that to be so and took advantage of it, resulting in harm to the Australian taxpayer and Medicare users.
43Mr Keks also provided me with a table of comparative sentences, and he made submissions in respect of the relevance of those. It is necessary for me to take into account the way in which people have been dealt with by other courts throughout Australia in relation to this offending under Commonwealth law, and I do so. I found those cases very helpful in identifying a current sentence practice and note that in each case the offenders involved received immediate custodial sentences.
44MR KEKS: Your Honour, I apologise, if I might now seek to be excused.
45HIS HONOUR: You may.
46MR KEKS: I am sorry for that interruption.
47HIS HONOUR: No, I'm sorry, I wasn't as quick as I had hoped.
48MR KEKS: Can I say this: a fellow member of Bar, Mr Stevens, has attended for the purpose, I understand, of providing my instructor with any assistance that may be necessary in the ultimate orders.
49HIS HONOUR: So Mr Stevens can step forward and you can step back ‑ ‑ ‑
50MR KEKS: I don't think I'd be so bold as to suggest that he is stepping into my position, but he is available informally to assist my instructor, if required.
51HIS HONOUR: Thank you, Mr Keks.
52The submission of the prosecution is that the seriousness of this offending requires an immediate term of imprisonment. He characterised the offending as a serious example of an inherently serious offence.
53Doing the best I can to pay proper regard to all of the sentencing principles, and giving full effect to such of the evidence from Ms Kocic as I do accept, relating principally to the application of Verdins principles 5 and 6, to the extent that they apply or the equivalent under Commonwealth law, I must of course also punish you adequately for the offending as required by s16A(1) of the Crimes Act (Cth).
54I now proceed to impose sentence as follows:
55On Charge 1, you are convicted and sentenced to imprisonment for a period of 30 months.
56On Charge 2, you are convicted and sentenced to imprisonment for a period of four months.
57The sentence on Charge 2 commences today. The sentence on Charge 1 commences after you have served one month of the sentence on Charge 2.
58That makes a total effective sentence of imprisonment for a period of 31 months.
59I further order that you be released on a recognisance in the sum of $2,500 to be of good behaviour for three years after you have served a total of 12 months of the sentences that I have imposed.
60I declare 63 days pre-sentence detention as time to be reckoned as served on the total effective sentence that I have imposed.
61But for your pleas of guilty, I would have sentenced you to imprisonment for a total effective period of four years with a non-parole period of two years and eight months.
62I make the reparation order under s21B(1)(c) of the Crimes Act (Cth) 1914 in the sum of $81,228.20.
63I note the medical conditions that have been identified and will record them on the order that is communicated to Corrections.
64Ms East, how would you like them to be noted?
65MS EAST: Your Honour, only to note ongoing management ‑ ‑ ‑
66HIS HONOUR: Ongoing management of the physical and mental health issues.
67MS EAST: Of Ms Ryan, and perhaps including the diagnoses that were included on previous orders ...
68HIS HONOUR: Yes.
69MS EAST: … would be appropriate.
70HIS HONOUR: Well, we'll refer back to those. Any other matters?
71MS EAST: No, Your Honour.
72HIS HONOUR: The recognisance release order needs to be composed and printed off. I suspect that's being done as I speak.
73VOICE (from body of court): Yes, Your Honour.
74HIS HONOUR: So I think I need to sign that.
75The recognisance release order will permit your release after you have served a period of 12 months, less the 63 days of pre-sentence detention, and you will be released on condition that you be of good behaviour for the three years during which the release order is in force. If you were to commit another offence punishable by imprisonment during the period of your release on recognisance, you would be liable to forfeit the $2,500, to which I have referred as being the recognisance, but also you would be liable to be brought back before this court and have to serve the remainder of your sentence.
76Is there anything else I need say in relation to the recognisance release order?
77MS EAST: No, Your Honour.
78HIS HONOUR: Have you discussed it with her, Ms East?
79MS EAST: I haven't, Your Honour, ordinarily ‑ ‑ ‑
80HIS HONOUR: Would you like a moment to discuss that with her?
81MS EAST: Your Honour, I'm happy for Your Honour to speak to her and confirm ‑ ‑ ‑
82HIS HONOUR: Your counsel is, I think, quite confident that you are understanding what I am saying about the recognisance release order. Do you understand what I am saying about the recognisance release order?
83OFFENDER: Yes.
84HIS HONOUR: Yes, thank you.
85MS EAST: Thank you, Your Honour.
86HIS HONOUR: To the extent that she needs to sign it then we'll take that as having been done effectively. It will be sent to the prison and you will be required to sign it at the prison.
87Are you able to help me as to how the reparation order is to be paid? Is it done through the County Court registry or …?
88VOICE: If I may assist. That order sits separately to your recognisance release order today.
89HIS HONOUR: It does.
90VOICE: And Services Australia will put in place a repayment plan with Ms Ryan.
91HIS HONOUR: So we don't need to say anything about the County Court registry.
92VOICE: No, Your Honour.
93HIS HONOUR: Thank you. Now is there anything else that I need do right now?
94VOICE: I'm just about to email it through to your associate.
95HIS HONOUR: Thank you. All right, I have signed that order now. Yes, thank you both.
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